This CNet interview with Congressman Boucher about his fight to reform the Digital Millenium Copyright Act asks the question: "You represent a rural district in the corner of southwest Virginia near Tennessee. What's turned you into a technology activist?"
To which Boucher replied:
"I see the use of advanced information technology as a way to build a bridge between parts of the nation where development is a priority and economic growth, and job creation is a priority in my district and in the American economic mainstream. It is a fact that businesses get a bargain when they locate in rural areas.
Historically, a lot of businesses simply could not do that, because they had to be physically proximate to their clients and their suppliers and their customers. That is not true with the Internet. Now a company can operate portions of its business just as effectively from the most rural place in the United States as it can from the building next to its corporate headquarters."
Tuesday, June 22, 2004
Appeal granted in accessory use case
In the case of Capelle v. Orange County, the Virginia Supreme Court has granted the petition for appeal on the following issue:
"The Orange County Board of Supervisors, without legal authority and in violation of Virginia law and local zoning ordinances, illegally burdened a designated limited residential zoning district with mining and trucking uses of an adjacent agricultural zone by accepting, as an accessory use, the use of a private road through such limited residential district to serve the mining truck hauling uses of the agriculturally zoned parcel."
Ah, now, I thought an accessory use typically would be a use that is otherwise unlawful but for its character as accessory to a lawful use - if it has to be a lawful use in the first place, then what difference does it make whether it is "accessory" to another lawful use?
"The Orange County Board of Supervisors, without legal authority and in violation of Virginia law and local zoning ordinances, illegally burdened a designated limited residential zoning district with mining and trucking uses of an adjacent agricultural zone by accepting, as an accessory use, the use of a private road through such limited residential district to serve the mining truck hauling uses of the agriculturally zoned parcel."
Ah, now, I thought an accessory use typically would be a use that is otherwise unlawful but for its character as accessory to a lawful use - if it has to be a lawful use in the first place, then what difference does it make whether it is "accessory" to another lawful use?
Fourth Circuit affirms Chief Judge Jones in Grundy condemnation case
In U.S. v. 100.01 Acres of Land in Buchanan County, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Niemeyer, and Traxler affirmed the rulings of Chief Judge Jones in a federal condemnation case related to the Army Corps of Engineers' project which is ongoing at Grundy.
Tom Mullins from the Street firm argued the case for the appellant.
Tom Mullins from the Street firm argued the case for the appellant.
Review of new rule on citation to unpublished authority leads to further review
Certification of class action against Wal-Mart for sex discrimination
George's has this post with links and Jurist has this post with more links (including the order) about the certification of a class action against Wal-Mart for sex discrimination on behalf of 1.5 million women.
Geez, that's awful, 1.5 million - awful if there was so much discrimination, and also awful to deal with such a case - sex discrimination as mass tort.
Heck, around here, I get excited if there are two plaintiffs in a case (or at least, more than 1 and less than 6).
Geez, that's awful, 1.5 million - awful if there was so much discrimination, and also awful to deal with such a case - sex discrimination as mass tort.
Heck, around here, I get excited if there are two plaintiffs in a case (or at least, more than 1 and less than 6).
Outspoken Mass. federal judge declares sentencing guidelines unconstitutional
Why the Supreme Court shouldn't cite foreign law
Via this post from Instapundit, here is a piece by Judge Posner on why the courts should not use foreign law.
Strangely, Judge Posner almost said in one of his points the same thing I did, why cite foreign cases when you can't even cite all the U.S. of A. cases (i.e., the unpublished ones).
Strangely, Judge Posner almost said in one of his points the same thing I did, why cite foreign cases when you can't even cite all the U.S. of A. cases (i.e., the unpublished ones).
Ethics charge against former Judge Askew dismissed on the merits
Via VLW, the Richmond paper reports here ("Complaint against judge dismissed," 6/22/04) that the ethics charge against former Circuit Court Judge Verbena Askew has been dismissed, for lack of clear and convincing evidence of misconduct. The charge was brought by Senator Stolle in connection with the sufficiency of Judge Askew's disclosures to committees of the General Assembly.
Monday, June 21, 2004
Alumna of Virginia Tech, George Mason becomes member of NTSB
The AP has this report on the newest member of the National Transportation Safety Board, a woman named Deborah Hersman, who has degrees from Virginia Tech and George Mason.
US DOJ says OK to citywide election for mayor of Richmond
The AP reports here that the U.S. Department of Justice has approved the plan for the citywide election of a "strong" mayor for the City of Richmond, "rejecting claims that it would dilute the political might of the city's largely black electorate."
Internet service provider not directly liable for copyright infringement
In CoStar Group, Inc. v. Loopnet, Inc., the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judge Michael with Judge Gregory dissenting, held that an internet service provider is not directly liable for copyright violations of its subscribers, who used the service to violate plaintiff's copyrights.
In his dissent, Judge Gregory was of the view, in essence, that the ISP was not passive enough to avoid liability.
This seems like one of those opinions that you will eventually read about Denise Howell's blog or Donna Wentworth's blog. The only professional commentary I can offer is that I did notice that appellant's counsel was a Hacker (actually, J. Hacker of O'Melveny & Myers in D.C.).
In his dissent, Judge Gregory was of the view, in essence, that the ISP was not passive enough to avoid liability.
This seems like one of those opinions that you will eventually read about Denise Howell's blog or Donna Wentworth's blog. The only professional commentary I can offer is that I did notice that appellant's counsel was a Hacker (actually, J. Hacker of O'Melveny & Myers in D.C.).
ERISA defendant in default must pay pension benefits prospectively
In Jackson v. Coyne & Delany Co., an ERISA case, Senior Judge Michael found the defendant in default, and entered judgment which, among other things, requires the defendant to pay pension benefits to the plaintiff for the rest of his life.
24,000 home schooled children in Virginia
This article ("Home is where the lesson is," 6/21/04) in the Norfolk paper says the percentage of school-aged Virginians who are home-schooled is about 2%.
More on the state-federal struggle over whether AEP can join regional power group
The Roanoke paper has this article ("U.S. says it can force AEP to join regional company," 6/19/04) with the latest salvo fired between state and federal energy regulators over who controls whether American Electric Power can join the PJM regional power distribution group, which AEP wants to do, but Virginia regulators have not yet approved.
More on Chief Judge Jones' damages ruling in the DirecTV cases
The Roanoke paper has this article ("DirecTV's legal strategies raise eyebrows," 6/19/04) about the DirecTV litigation in the W.D. Va. and elsewhere.
Sunday, June 20, 2004
On probation violations in Virginia
The Richmond paper has this article ("Prison terms to be reviewed," 6/20/04) on the attempt in Virginia to reduce the number of Virginians sent to prison for violating the terms of their probation or parole.
Judges appear in re-enactment of Brown v. Board of Education arguments documentary
In this piece ("OMBUDSMAN: Readers quick to complain about any 'sins' of omission," 6/20/04) in the Richmond paper, it is reported:
"For the Brown v. Board of Education film documentary, produced by New Millennium Studios in Petersburg, the paper in fact did publish two short items on the production, on May 1 and May 14. One announced the studio was seeking extras to appear in the film, sponsored by the Martin Luther King Commission, and the other announced the film would be shown at the Carpenter Center on May 16.
However, the items did not include names of the judicial "actors," and the T-D published no follow-up account or review. The film was shown the one time to an invited audience, but it was free and open to the public.
A Virginia Supreme Court spokeswoman provided a rundown on the cast. Judge Roger L. Gregory of the 4th U.S. Circuit Court of Appeals portrayed Thurgood Marshall, and Judge James W. Benton Jr. of the Virginia Court of Appeals played Spottswood Robinson.
Nine retired circuit or district court judges, including Turlington, participated. Other retired judges in the cast, she said, were Donald Hall Kent, William R. Shelton and William B. Wimbish, of Richmond; W. Park Lemmond Jr., Petersburg; Marc Jacobson, Norfolk; Alfred D. Swersky, Alexandria; Paul F. Sheridan, Arlington, and Tristram T. Hyde IV, Heathsville."
"For the Brown v. Board of Education film documentary, produced by New Millennium Studios in Petersburg, the paper in fact did publish two short items on the production, on May 1 and May 14. One announced the studio was seeking extras to appear in the film, sponsored by the Martin Luther King Commission, and the other announced the film would be shown at the Carpenter Center on May 16.
However, the items did not include names of the judicial "actors," and the T-D published no follow-up account or review. The film was shown the one time to an invited audience, but it was free and open to the public.
A Virginia Supreme Court spokeswoman provided a rundown on the cast. Judge Roger L. Gregory of the 4th U.S. Circuit Court of Appeals portrayed Thurgood Marshall, and Judge James W. Benton Jr. of the Virginia Court of Appeals played Spottswood Robinson.
Nine retired circuit or district court judges, including Turlington, participated. Other retired judges in the cast, she said, were Donald Hall Kent, William R. Shelton and William B. Wimbish, of Richmond; W. Park Lemmond Jr., Petersburg; Marc Jacobson, Norfolk; Alfred D. Swersky, Alexandria; Paul F. Sheridan, Arlington, and Tristram T. Hyde IV, Heathsville."
LA Times' take on new Virginia law dealing with same-sex contracts
The LA Times (registration required) has this article ("Major Reversal in Gay Rights Looms in Virginia," 6/20/04) which begins:
"When it comes to adapting state laws to reflect social change — such as women's suffrage, school desegregation and gay rights — Virginia has always been a laggard."
Regarding the new statute, the article says:
"Critics say the law — which takes effect July 1 and reaffirms the state's ban on gay and lesbian marriage — could negate powers of attorney, wills, leases, child-custody arrangements, joint bank accounts and health insurance granted by companies that recognize domestic partnerships."
The article doesn't say what are the other interpretations of the new law, which goes into effect July 1.
"When it comes to adapting state laws to reflect social change — such as women's suffrage, school desegregation and gay rights — Virginia has always been a laggard."
Regarding the new statute, the article says:
"Critics say the law — which takes effect July 1 and reaffirms the state's ban on gay and lesbian marriage — could negate powers of attorney, wills, leases, child-custody arrangements, joint bank accounts and health insurance granted by companies that recognize domestic partnerships."
The article doesn't say what are the other interpretations of the new law, which goes into effect July 1.
Mike Vick's Virginia Beach lawyer for marketing deals
The Daily Press has this article ("Keeping business close to home," 6/20/04) on the Virginia Beach lawyer who represents Atlanta Falcons (and former Virginia Tech) quarterback Mike Vick in his marketing deals.
Some (mostly Southwest) Virginia webcams
I read an article in today's Roanoke paper protesting the installation of a webcam at Radford University.
Already there are other webcams on Virginia campuses and elsewhere: the RotundaCam, looking up the Law at the University of Virginia in Charlottesville; the webcam with a view of the Drill Field at Virignia Tech; this view of Lexington from VMI; this view of W&L; the Channel7 cam in Roanoke; this cam in Botetourt County; this cam showing the Walling park in Bristol; this cam at Honaker; this cam at Lebanon; and, from over in Tennessee, this cam from the WCYB transmitter; and this cam from Lynchburg.
Already there are other webcams on Virginia campuses and elsewhere: the RotundaCam, looking up the Law at the University of Virginia in Charlottesville; the webcam with a view of the Drill Field at Virignia Tech; this view of Lexington from VMI; this view of W&L; the Channel7 cam in Roanoke; this cam in Botetourt County; this cam showing the Walling park in Bristol; this cam at Honaker; this cam at Lebanon; and, from over in Tennessee, this cam from the WCYB transmitter; and this cam from Lynchburg.
Saturday, June 19, 2004
Malvo jurors recollect their ordeal over sentencing
The Norfolk paper has this article ("Malvo trial jurors recall rancor during sentencing," 6/19/04) about the recollections of the jurors from the Malvo case tried in Chesapeake, in which the young sniper was not given the death sentence.
Friday, June 18, 2004
Professor Elzinga's testimony in the Oracle case
InformationWeek has InformationWeek > Oracle Antitrust Trial >this article on the testimony of Professor Elzinga in the Oracle case.
This week, Professor Elzinga may be the most high-profile U.Va. professor in the news, giving a temporary respite to Professor Sabato (and to Julian Bond of the History Department).
This week, Professor Elzinga may be the most high-profile U.Va. professor in the news, giving a temporary respite to Professor Sabato (and to Julian Bond of the History Department).
Spending Virginia's tobacco money on telecommunications
This press release explains Virginia's plans to use tobacco money to invest in telecommunications with the goal of economic development in rural and not so rural Southside and Southwest Virginia.
Denial of qualified immunity reversed for officers in case of detainee who suffocated
In Parish v. Cleveland, the Fourth Circuit reversed the district court's denial of the individual defendants' motion for summary judgment based on qualified immunity.
The panel included Judge Williams, Judge King, and Judge Luttig, each of whom wrote separately, with Judge Luttig dissenting. Judge King, in his concurrence, opined that the case was a close one, but he felt the evidence did not show deliberate indifference, only negligence.
In his dissent, Judge Luttig began with his view that the Circuit's qualified immunity cases have become erratic:
"With today’s decision, this court completes the turn of both the deliberate indifference and qualified immunity doctrines on their heads, so confounding these two important doctrines that it is literally impossible in the first instance to make principled predictions as to what conduct will and will not be considered to constitute "deliberate
indifference," and, upon a finding of such, to make like predictions as to the availability of qualified immunity."
Judge Williams' opinion, commenting on the dissent, notes that Judge Luttig's discontent with some of these precedents has been expressed more than once in his earlier dissents.
The panel included Judge Williams, Judge King, and Judge Luttig, each of whom wrote separately, with Judge Luttig dissenting. Judge King, in his concurrence, opined that the case was a close one, but he felt the evidence did not show deliberate indifference, only negligence.
In his dissent, Judge Luttig began with his view that the Circuit's qualified immunity cases have become erratic:
"With today’s decision, this court completes the turn of both the deliberate indifference and qualified immunity doctrines on their heads, so confounding these two important doctrines that it is literally impossible in the first instance to make principled predictions as to what conduct will and will not be considered to constitute "deliberate
indifference," and, upon a finding of such, to make like predictions as to the availability of qualified immunity."
Judge Williams' opinion, commenting on the dissent, notes that Judge Luttig's discontent with some of these precedents has been expressed more than once in his earlier dissents.
President Sullivan stepping down after 12 years leading William & Mary
Today I received this message that the president of the College of William & Mary is stepping down after 12 years.
Who reads this blog? Paul Goldman and 24,996 others
Paul Goldman actually quotes this post from SW Virginia law blog (which in turn refers to this earlier post) in his latest column online at the Augusta Free Press site.
Sometime this afternoon, the numbers on the SiteMeter will roll past 25,000 visits and 40,000 page views.
P.S. Another reader is Lee County lawyer Rick Callahan, who pointed out this latest Goldman article to me.
Sometime this afternoon, the numbers on the SiteMeter will roll past 25,000 visits and 40,000 page views.
P.S. Another reader is Lee County lawyer Rick Callahan, who pointed out this latest Goldman article to me.
Tenant's family member does not inherit tenant's rights to subsidized apartment
In Carter v. Meadowgreen Associates, the Virginia Supreme Court in an opinion by Senior Justice Russell held that a family member of a tenant who died did not inherit the tenant's right to occupy an apartment, where the lease was subsidized by the government under the section 8 housing program.
Due diligence and checking the circuit court's website
In Rose v. Jaques, the Virginia Supreme Court in an opinion by Justice Agee held that the defendant got extra time for its notice of appeal under Va. Code 8.01-428(c), where the defendant claimed lack of notice. One of the factors the defendant argued in support of its diligence was that its counsel regularly checked the circuit's website online.
Section 8.01-428(c) provides:
"Failure to notify party or counsel of final order. - If counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the part of that party and (ii) denied that party an opportunity to file an appeal therefrom, the circuit court may, within sixty days of the entry of such order, grant the party leave to appeal. The computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect."
Section 8.01-428(c) provides:
"Failure to notify party or counsel of final order. - If counsel, or a party not represented by counsel, who is not in default in a circuit court is not notified by any means of the entry of a final order and the circuit court is satisfied that such lack of notice (i) did not result from a failure to exercise due diligence on the part of that party and (ii) denied that party an opportunity to file an appeal therefrom, the circuit court may, within sixty days of the entry of such order, grant the party leave to appeal. The computation of time for noting and perfecting an appeal shall run from the entry of such order, and such order shall have no other effect."
Henrico drug court graduates first class
Richmond.com has this article on the first graduating class of the Henrico County drug court.
Judges move out, order courthouse cleaned and fixed
The Daily Press reports here ("Judges order courthouse cleanup," 6/18/04) that circuit court judges have moved Surry County cases to Sussex County while the courthouse in Surry is fixed.
More on the Gate City mayor's election
The Richmond paper has this article ("Disputed vote reviewed," 6/18/04) on the ongoing dispute over the handling of the mayor's race in Gate City.
Thursday, June 17, 2004
Various state appeals court opinions used to show law not clear for purposes of qualified immunity
In Owens v. Lott, earlier this week, the Fourth Circuit in an opinion by Judge Traxler, joined by Judges Michael and Shedd, concluded that the conduct of the defendants in a case under 42 U.S.C. 1983 violated the Fourth Amendment but that the defendants were entitled to qualified immunity.
One thing that is interesting about the case is how the Court went about the analysis of figuring whether the plaintiff's constitutional rights were clearly established. The Court took into account appellate court decisions from a number of state courts, noting that "these decisions provide no clear view, let alone a consensus, regarding what factors are most significant in deciding whether sufficient probable cause exists to support the search of 'all persons' found in a private residence being searched for drugs."
I think this is an interesting and useful opinion for defendants asserting the qualified immunity defense.
One thing that is interesting about the case is how the Court went about the analysis of figuring whether the plaintiff's constitutional rights were clearly established. The Court took into account appellate court decisions from a number of state courts, noting that "these decisions provide no clear view, let alone a consensus, regarding what factors are most significant in deciding whether sufficient probable cause exists to support the search of 'all persons' found in a private residence being searched for drugs."
I think this is an interesting and useful opinion for defendants asserting the qualified immunity defense.
Suppression order by Judge Hudson of E.D. Va. overruled
In U.S. Humphries, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judge Williams, and with Judge Gregory concurring, held that Judge Hudson of the E.D. Va. erred in suppressing evidence for lack of probable cause.
Judge Hudson is the former U.S. attorney for the E.D. Va.
Judge Hudson is the former U.S. attorney for the E.D. Va.
Virginia med mal case dismissed on limitations, E.R. visits are not continuing treatment
In Castillo v. Emergency Medical Associates, P.A., the Fourth Circuit in an opinion by Judge Duncan, joined by Judge Motz with Judge Gregory dissenting, held that the plaintiff's medical malpractice claim was untimely under Virginia law, as there was no "continuing treatment" to bring the alleged acts of negligence within the two-year period.
Interestingly, both the majority and the dissent relied extensively on Virginia circuit court opinions.
I suspect that the med mal lawyers around the state will be studying this opinion for years to come.
Interestingly, both the majority and the dissent relied extensively on Virginia circuit court opinions.
I suspect that the med mal lawyers around the state will be studying this opinion for years to come.
More on the Boucher bill to liberalize copyright law
Wired News has this story ("DMCA Foes Find Allies in House," 6/17/04) on the legislation proposed by Congressman Boucher of Southwest Virginia to fix the Digital Millenium Copyright Act.
Bush administration lawyers turned radioactive as judicial nominees
Balkin has this post about how some Bush judicial nominees who were involved in legal representation of the government in connection with Iraq and the war on terror are now "radioactive." The post would seem to apply to but does not mention by name William J. Haynes, nominated to the Fourth Circuit to succeed Judge Widener.
More on Daubert in the Fourth Circuit
Blog 702 has this post about the Fourth Circuit's ruling in the case of O'Neill v. Windshire-Copeland Assoc., LP, which was a per curiam opinion for the panel of Judges Michael and King and District Judge Wooten from South Carolina, and in which the exclusion of expert testimony was affirmed.
More on learning how to protest logging
The Coalfield Progress has this report on the training of some opponents of logging in the Jefferson National Forest.
NRV fiber network could cost $10.5 million
The Roanoke paper reprts here ("Broadband network could cost $10.5 million," 6/17/04) on the estimated cost of a proposed fiber optic network for the New River Valley area.
Wednesday, June 16, 2004
Legislators grouse about the $300 million surplus
"Had we stayed a few more days and learned of this extra $300 million, we could have built some roads," is what one Republican delegate said today, according to this AP report on today's General Assembly session dealing with Governor Warner's budget amendments.
Editor with Lynchburg paper edits stories for journalism contest, apologizes and quits
The AP has this story ("Lynchburg editor who altered contest entries apologizes, quits," 6/16/04) about a newspaper editor who resigned after he was found to have altered entries for submission on behalf of the Lynchburg paper to the contest for statewide journalism awards.
Bear wanders into Southwest Virginia hospital, gets shot and killed
The AP has this report on the killing of a 300-pound black bear found wandering about a hospital in Franklin County.
More on the constructive discharge case
Brian Peterson has this post applauding the Supreme Court's decision in Pennsylvania State Police v. Suders as a sensible clarification of the law in an area on which the U.S. Supreme Court had not previously spoken.
DirecTV news
This post from Law Meme describes the narrowing of DirecTV's anti-piracy efforts, while this article from law.com describes the 11th circuit's ruling against DirecTV in one of the first of the cases to go up on appeal.
The Eleventh Circuit's opinion in DirecTV, Inc. v. Treworgy is here.
In DirecTV v. Adkins, Judge Jones of the W.D. Va. did not need to reach the issue decided by the Eleventh Circuit regarding a private cause of action under the Electronic Communications Privacy Act, granting relief instead under the Federal Communications Act, 47 U.S.C. 605.
The Eleventh Circuit's opinion in DirecTV, Inc. v. Treworgy is here.
In DirecTV v. Adkins, Judge Jones of the W.D. Va. did not need to reach the issue decided by the Eleventh Circuit regarding a private cause of action under the Electronic Communications Privacy Act, granting relief instead under the Federal Communications Act, 47 U.S.C. 605.
Buchanan County minister wants to outlaw law school's Gay-Straight Alliance
The Virginia Mountaineer has this story ("ASL Says It Can't Discriminate Against Gay-Straight Club," 6/10/04) about the appearance before the county board of supervisors of a Buchanan County resident who wanted the board to take action against the Gay-Straight Alliance of the Appalachian School of Law. The president of the law school was there to explain the school's position.
Possible alliance in the works for Radford and Virginia Tech
The Roanoke paper reports here ("Long-separated universities seek to rebuild relationship," 6/16/04) that Virginia Tech and Radford might start hiring faculty to teach at both schools.
City of Radford settles overtime dispute with 40 police officers
The Roanoke Times has this report on the City of Radford's settlement with 40 police officers of their overtime claims.
What threatens the Blue Ridge Parkway
According to this report, a recent survey shows that Virginians fear real estate development, while North Carolinians fear air pollution, as the biggest threats to the enjoyment of Blue Ridge Parkway.
High-tech virtual visitation
The Washington Post has this article ("Visitation Rights Are Becoming High-Tech," 6/15/2004) about the use of virtual visitation (court-ordered or court-approved) to improve communications between parents and children separated by distance.
News coverage of this week's sex harassment decision
George's has this post with the good and the bad of coverage of Pennsylvania State Police v. Suders.
The AP's Gina Holland had this account of the decision.
The AP's Gina Holland had this account of the decision.
Jerry Wolfe wins Commonwealth's attorney race in Bristol
The Bristol paper reports here ("Jerry Wolfe wins chief prosecutor's post," 6/13/04) on the outcome of the special election for Commonwealth's attorney in Bristol, with a voter turnout of about 16%.
Out-of-court statement can be used as admission but not for impeachment
In Gray v. Rhoads, the Virginia Supreme Court in an opinion by Justice Kinser concluded that trial court erred in excluding the prior statements of the defendants pursuant to Va. Code 8.01-404, which says: "This section is subject to the qualification, that in an action to recover for a personal injury or death by wrongful act or neglect, no ex parte affidavit or statement in writing other than a deposition, after due notice, of a witness and no extrajudicial recording of the voice of such witness, or reproduction or transcript thereof, as to the facts or circumstances attending the wrongful act or neglect complained of, shall be used to contradict him as a witness in the case." The Court reasoned that a plaintiff can use the defendant's statements as substantive admissions, without running afoul of the prohibition against the use of the statements to "contradict" the defendant "as a witness."
Senior Justice Stephenson dissented, joined by Justice Koontz. The dissent makes the reasonable point that the plaintiff's purpose in using the defendants' statements was to contradict their testimony.
The outcome of this case seems correct but strange. The majority notes that it is appropriate for a trial court to offer a limiting instruction when admitting impeachment evidence, that the evidence should not be considered proof of what happened but is admitted only as it affects credibility. Perhaps, from the letter of the statute, on remand the trial court should instruct the jury that the statements of the officers are offered as proof of what happened, but should not be considered as evidence that they are not telling the truth in their testimony as witnesses at the trial.
Senior Justice Stephenson dissented, joined by Justice Koontz. The dissent makes the reasonable point that the plaintiff's purpose in using the defendants' statements was to contradict their testimony.
The outcome of this case seems correct but strange. The majority notes that it is appropriate for a trial court to offer a limiting instruction when admitting impeachment evidence, that the evidence should not be considered proof of what happened but is admitted only as it affects credibility. Perhaps, from the letter of the statute, on remand the trial court should instruct the jury that the statements of the officers are offered as proof of what happened, but should not be considered as evidence that they are not telling the truth in their testimony as witnesses at the trial.
Tuesday, June 15, 2004
Pro se litigant's pleading, sent to court by lawyer not representing her, was not improperly signed
In Walker v. American Assn. of Professional Eye Care Specialists, P.C., the Virginia Supreme Court in an opinion by Justice Lemons held that the delivery by a lawyer of a pro se litigant's pleading did not make the lawyer counsel of record, and the paper was not improperly signed under Rule 1:4.
Arguing absurdity fails again, in case regarding jurisdiction of juvenile court after nolle prose in circuit court
In Cook v. Com., the appellant argued that the construction given by the trial court and the Court of Appeals to Va. Code 16.1-271 was "absurd." The Virginia Supreme Court, in an opinion by Justice Lemons, concluded otherwise.
Evidently, appeals directed to the justices' sense of the absurd are unlikely to be successful.
Evidently, appeals directed to the justices' sense of the absurd are unlikely to be successful.
Rescission of lease for undue influence reversed
In Friendly Ice Cream Corp. v. Beckner, the Virginia Supreme Court in an opinion by Justice Lacy reversed the chancellor's determination that a commercial lease should be rescinded, concluding there was no presumption of undue influence because neither a confidential relationship nor the combination of weakness of mind and grossly inadequate consideration were shown.
No error in excluding evidence of malpractice defendant's prior negligence and misconduct
In Stottlemey v. Ghramm, the Virginia Supreme Court in an opinion by Chief Justice Hassell held that in a medical malpractice case against the treating physician and the hospital, the trial court did not err in refusing to admit evidence of the physician's "prior bad acts." The Court noted, "In this Commonwealth, the rule is well established that a litigant may not cross-examine a witness about collateral independent facts irrelevant to the issues before the trier of fact," citing cases. The Court concluded that "[t]he subjects of testimony upon which the plaintiff sought to cross-examine [the defendant] were collateral, and such testimony would have certainly injected non-probative prejudicial evidence before the jury." The Court also noted, "Generally, specific acts of bad conduct or prior acts of negligence are not relevant or admissible to show that a defendant was negligent and that such negligence was a proximate cause of a plaintiff's injuries. Evidence that a defendant was negligent on a prior occasion simply has no
relevance or bearing upon whether the defendant was negligent during the occasion that is the subject of the litigation."
relevance or bearing upon whether the defendant was negligent during the occasion that is the subject of the litigation."
Exclusion of expert testimony by physician reversed
In Christian v. Surgical Specialists of Richmond, Ltd., the Virginia Supreme Court in an opinion by Justice Koontz concluded that the trial court erred by excluding the testimony of a physician called by the plaintiff, under Va. Code 8.01-581.20. The witness was a practicing physician from New York. The statute allows that "[a]n expert witness who is familiar with the statewide standard of care shall not have his testimony excluded on the ground that he does not practice in this Commonwealth." On appeal, the Supreme Court noted that the witness "affirmatively testified that he had gained his knowledge of the Virginia standard of care through discussions with physicians in Virginia, and while attending seminars and meetings in Virginia concerning laparoscopic surgery."
Re-sentencing required because Commonwealth used probation revocation in sentencing phase
In Jaccard v. Com., the Virginia Supreme Court in an opinion by Justice Koontz reversed the Court of Appeals and ordered the re-sentencing of a Wythe County defendant, where in the sentencing phase the trial court admitted evidence of the defendant's prior violation of the terms of his probation.
Plain meaning rule slavishly applied to state grievance statute, since amended
In Horner v. Dept. of Mental Health, Mental Retardation and Substance Abuse Services, the Virginia Supreme Court in an opinion by Senior Justice Compton reversed the Court of Appeals, rejected the arguments of the Attorney General, and applied former Va. Code 2.2-3003 in a manner the Attorney General's office argued was "absurd." Va. Code 2.2-3003, apparently to avoid the outcome of this case, was amended in 2003, c. 252.
Sunday, June 13, 2004
DMV cracks down on vans hauling bikes for Creeper Trail rides
Incredibly, the DMV is cracking down on the outfits that take bicyclists up to White Top to ride down the Virginia Creeper Trail to Damascus, according to this report ("Damascus' bike shuttles 'tagged' out," 6/11/04), which says DMV is claiming the shuttles need special plates and liability insurance.
Even more incredibly, the article puts the blame on the police chief in Damascus.
Even more incredibly, the article puts the blame on the police chief in Damascus.
ECON 101 maestro and mystery writer meets the Oracle anti-trust trial
As reported here by ZDNet, a federal judge in California denied a defense motion to exclude the expert testimony of, among others, Professor Kenneth Elzinga of the University of Virginia, who taught Introductory Economics to about a gazillion Wahoos over the years, and who is so far as I know the co-author of the economic murder mysteries, beginning with Murder at the Margin (under the pseudonym, Marshall Jevons).
After 36 years, a new juvenile & domestic relations district judge
The Winchester paper reports here ("Kellas Sworn In As Judge," 6/12/04) that the first woman judge for the Winchester/Frederick County district was sworn in Saturday, and that her successor served for 36 years.
I'm guess there are many more women judges than there are district court jduges who sit for 36 years, but perhaps I am mistaken.
I'm guess there are many more women judges than there are district court jduges who sit for 36 years, but perhaps I am mistaken.
Son of Thurgood Marshall may run for lieutenant governor of Virginia
The Washington Post reports here ("Va. Safety Chief May Run for Lt. Governor," 6/11/04) that John Marshall, Virginia's Secretary of Public Safety, may seek the 2005 Democatic nomination for Lieutenant Governor of Virginia.
Mark your calendar - sales tax hike not until September 1
As previously noted in connection with an article by Paul Goldman, the Virginia Constitution precludes an August 1 effective date for the legislation passed in the special session of the General Assembly, including tax increases, as reported here ("$50 million break on sales tax," 6/13/04) in the Richmond paper.
Roanoke city manager sues online columnist for defamation
The Roanoke paper reports here ("Burcham files suit against columnist," 6/11/04) that "City Manager Darlene Burcham sued a Roanoke online columnist for defamation on Thursday over his account of a January encounter in the Tanglewood Mall parking lot that she says never happened."
The columnist is (or was) with roanokejournal.com, about which I not heard previously.
The columnist is (or was) with roanokejournal.com, about which I not heard previously.
Anti-tax legislators accused of not being clueless
In this AP report, Democrats and others claim that anti-tax Republican legislators had the same information as did Governor Warner about the increased revenues the state government realized in March and April of this year.
Logging and protesting
Gerald Gray had this interesting letter to the editor in today's Bristol paper, which also published this second letter dealing with "facts" about logging in the National Forest.
Friday, June 11, 2004
Harassment case settled for $62,000 and new job
The Norfolk paper reports here ("Officer agrees to settlement in harrassment suit," 6/11/04) on the settlement of a sexual harassment case brought by a city employee.
Judge Wilson denies summary judgment based on adverse inference from spoiled evidence
In Ward v. Texas Steak, Ltd., Judge Wilson found an adverse inference for spoliation of the key evidence in the case and therefore denied the defendant's motion for summary judgment.
So what is the Chrissy-Dog's excuse?
I've been reading articles like this one about how border collies know English.
Our old hound maybe can't hear or quit listening, but she watches us like a hawk.
Our old hound maybe can't hear or quit listening, but she watches us like a hawk.
What feels good about e-filing
Balasubramania has this post about how e-filing at night makes him feel good - "While opposing counsel is sleeping you are serving them with pleadings!"
More on the Gate City election
The Richmond Times-Dispatch has this story ("Disputed election reviewed," 6/11/04) about the controversy over the outcome of mayor's race in Scott County.
Interview with the shooter in Appalachian School of Law killings
The AP has this frightening interview with the man who shot and killed Dean Sutin at the Appalachian School of Law in Grundy.
Wednesday, June 09, 2004
Conviction on failure to appear reversed for lack of evidence that trial judge took judicial notice
In Edmonds v. Com., the Virginia Court of Appeals, in a decision by Judge Annunziata, joined by Judges Clements and McClanahan, held that the Commonwealth failed to prove that the defendant knew she was supposed to appear in court, and therefore her conviction for failure to appear was reversed, notwithstanding the Commonwealth's arguments that the trial court jduge took judicial notice of the indications on the warrant that the defendant knew of the hearing date. The Court explained that the trial court must make some kind of statement that communicates its intent to take judicial notice for such facts to be considered evidence that would sustain a conviction.
Double jeopardy clause precludes larceny trial after acquittal on robbery charge
In Hudgins v. Com., the Virginia Court of Appeals, sitting en banc, held that the Double Jeopardy Clause precluded a subsequent prosecution for grand larceny after the defendant had been acquitted of robbery in connection with the same incident. The opinion was written by Judge Walter Felton. Judge Benton wrote a separate concurring opinion. Judge Elder wrote a separate concurring opinion. Judge Annunziata, joined by Judge Clements, wrote a separate opinion concurring in part and dissenting in part.
Chief Judge Jones rules on remedy for DirecTV against alleged signal bandits
In DirecTV, Inc. v. Adkins, Chief Judge Jones of the W.D. Va. ruled in favor of DirecTV on the question of what is the appropriate remedy for the plaintiff in this signal theft case. The Court granted plaintiff's request for statutory damages and injunctive relief, the award of statutory damages being $10,000 per device. The Court noted that "[b]ecause the
statute deems the selling or distributing of each device to be a separate violation . . . , DIRECTV’s request would amount to awards of $2,050,000 against defendant Adkins, $150,000 against defendant Coleman, $200,000 against defendant Dykes, and $820,000 against defendant Rife."
statute deems the selling or distributing of each device to be a separate violation . . . , DIRECTV’s request would amount to awards of $2,050,000 against defendant Adkins, $150,000 against defendant Coleman, $200,000 against defendant Dykes, and $820,000 against defendant Rife."
More on Judge Wilson's ruling disqualifying lawyer from California's Geragos firm
The Roanoke paper has this article ("Lawyer disqualified in smuggling case," 6/9/04) on Judge Wilson's ruling that a California lawyer cannot represent multiple defendants in a series of smuggling prosecutions. The article notes that the lawyer is with the law firm of Geragos and Geragos, most famous recently as counsel for Scott Peterson.
Baby-faced VMI cadet from Norelco ads killed in Iraq
The Richmond paper reports here ("Graduate of VMI killed in Iraq," 6/9/04) the following:
"The conflict in Iraq claimed the life of a Virginia Military Institute graduate known by family and friends for his determined spirit, energy and generosity.
Spc. Ryan Doltz, 26, of Mine Hill, N.J., died in Baghdad on Saturday when the vehicle in which he was riding hit an improvised explosive device. . . .
Doltz was VMI's "baby face" in a Norelco shaver advertising campaign that featured institute cadets.
In real life, he was zealous about the war and reconstruction effort in Iraq and eager to play a role."
The Roanoke paper also has this report ("3rd VMI graduate dies in Iraq War," 6/9/04) and the AP has this report.
From 1998, here is a Roanoke Times story about the commercial.
"The conflict in Iraq claimed the life of a Virginia Military Institute graduate known by family and friends for his determined spirit, energy and generosity.
Spc. Ryan Doltz, 26, of Mine Hill, N.J., died in Baghdad on Saturday when the vehicle in which he was riding hit an improvised explosive device. . . .
Doltz was VMI's "baby face" in a Norelco shaver advertising campaign that featured institute cadets.
In real life, he was zealous about the war and reconstruction effort in Iraq and eager to play a role."
The Roanoke paper also has this report ("3rd VMI graduate dies in Iraq War," 6/9/04) and the AP has this report.
From 1998, here is a Roanoke Times story about the commercial.
More on Reagan and Jelly Belly
The AP has this report on the Reagan/Jelly Belly connection and, via this post from Southern Appeal, the Jelly Belly company has this page ("Jelly Belly Saddened by the Passing of Ronald Reagan," 6/6/04) about Reagan.
I usually get my Jelly Bellies down at the Simply Delicious delicatessen on Volunteer Parkway, about $10 at a time, which doesn't last very long. My wife buys me Jelly Bellies 2-3 times a year, and it is always a good gift.
I usually get my Jelly Bellies down at the Simply Delicious delicatessen on Volunteer Parkway, about $10 at a time, which doesn't last very long. My wife buys me Jelly Bellies 2-3 times a year, and it is always a good gift.
Virginia AG's brief in the W.D. Va. prisoners' rights case
Tuesday, June 08, 2004
On West Virginia's Judge Hallanan
In this post, Brian Peterson links to this article on the life and times of Judge Elizabeth Hallanan, who died this week at age 79. She served on the U.S. District Court for the Southern District of West Virginia, having been appointed by President Reagan.
Judge Wilson disqualifies lawyer with multiple clients in tobacco smuggling cases
In U.S. v. Chichyan, Judge Wilson disqualified counsel for one of the defendants, because the lawyer also represented two other defendants in a related prosecution in California. The Court concluded: "Buehler’s representation of defendants in overlapping prosecutions arising out of a single undercover operation when those defendants could possibly offer trial testimony against one another, receive leniency by cooperating, or if convicted receive varying role adjustments is simply too problematic."
Ninth District race as most expensive this year in Virginia?
The Coalfield Progress has this report ("Ninth district race may be Virginia's most expensive," 6/3/04) speculating that the Boucher-Triplett race will involve the most spending of this year's congressional campaigns in Virginia.
Warner makes interim appointments of judges in Hampton, Alexandria
The Daily Press reports here ("Judge's return to Hampton angers critic," 6/8/04) that Governor Warner gave an interim reappointment to Judge Andrews of the Circuit Court in Hampton, angering the Republic delegate who opposed his reappointment.
For Alexandria, Warner gave the interim appointment to criminal defense lawyer Lisa Kemler, as reported here ("Warner Makes New Pick for Circuit Court," 6/8/04) in the Washington Post.
For Alexandria, Warner gave the interim appointment to criminal defense lawyer Lisa Kemler, as reported here ("Warner Makes New Pick for Circuit Court," 6/8/04) in the Washington Post.
Del. Griffith on FOI council
Denying any sense of the ironic, Delegate Morgan Griffith, after seeking legislation that could have had the effect of closing party caucuses of the General Assembly members from the public, even where legislation was discussion, has sought and obtained a position on the FOI council, according to this report ("Griffith named to FOI council," 6/8/04) in the Richmond paper.
On the face of it, I wonder why stick this on Griffith (or let him take it), when he has enough on his plate already, and when no one would say he has any particular credibility as an open government advocate.
On the face of it, I wonder why stick this on Griffith (or let him take it), when he has enough on his plate already, and when no one would say he has any particular credibility as an open government advocate.
Lawyer Rocovich replaced at head of Va. Tech Board of Visitors
The Roanoke paper has this article ("John Rocovich replaced as Tech rector on 3-9 vote," 6/8/04) on the ouster of Roanoke lawyer John Rocovich as the head of the Tech BOV.
The article notes: "Critics accused Rocovich of pushing his own conservative beliefs when he drafted a resolution effectively ending race and gender polices at Tech as well as removing homosexuals from the university's anti-discrimination clause."
The article notes: "Critics accused Rocovich of pushing his own conservative beliefs when he drafted a resolution effectively ending race and gender polices at Tech as well as removing homosexuals from the university's anti-discrimination clause."
Monday, June 07, 2004
The Southwest Virginia connection with this year's Stanley Cup
Apparently, John Tortorella, the coach of the National Hockey League champion Tampa Bay Lightning, met his wife and got into coaching after he blew out a knee playing minor league hockey in Roanoke in the 1980s.
The Cup finals were fantastic, simply outstanding (and I was rooting for Calgary). The skating of the Cup after the game is one of the best things in sports.
The Cup finals were fantastic, simply outstanding (and I was rooting for Calgary). The skating of the Cup after the game is one of the best things in sports.
No federal jurisdiction for city-county squabble over proceeds of red-light camera program
In Shavitz v. Guilford Board of Education, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz and Traxler and Senior Judge Hamilton concluded that there was no federal jurisdiction for the claim of the City of High Point against Guilford County regarding the proceeds of a red-light camera program
No federal jurisdiction for city-county squabble over proceeds of red-light camera program
In Shavitz v. Guilford Board of Education, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz and Traxler and Senior Judge Hamilton concluded that there was no federal jurisdiction for the claim of the City of High Point against Guilford County regarding the proceeds of a red-light camera program
Escolastica.com beats trademark infringement claim brought by Scholastic
In Scholastic, Inc. v. Escolastica.com, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Williams, and Baldock affirmed judgment for the defendant on the plaintiff's trademark claims.
Sending out sample socks not trafficking in counterfeit goods
In U.S. v. Habegger, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judge Duncan and Senior Judge Bobby R. Baldock of the Tenth Circuit, overruled the defendant's conviction for trafficking in counterfeit goods, holding that the shipping of sample counterfeit socks was not trafficking within the meaning of the statute.
Car wash sues city for cutting its water, Judge Michael dismisses for lack of jurisdiction and failure to state a claim
In Express Carwash of Charlottesville, LLLP v. City of Charlottesville, Senior Judge Michael of the W.D. Va. affirmed the recommendations of Magistrate Judge Crigler and dismissed the constitutional claims brought by a Charlottesville car wash against the City for rationing its water during a time of drought. The Court concluded, among other things, that the plaintiff's Takings claim was not ripe, and because the water-rationing scheme was rational, plaintiff had no Equal Protection claim.
Sunday, June 06, 2004
First month of tax increases unconstitutional?
Via Bacon's Rebellion, Paul Goldman has this column explaining how laws passed in a special session of the General Assembly (such as the recent tax bill) take effect, according to the Virginia Constitution, "on the first day of the fourth month following the month of adjournment of the special session." Va. Const., art. IV, section 13. The tax bill on its face takes effect August 1, the Constitution says it can't take effect (without emergency status) until September 1.
Listening on the extension phone generally not viewed as interception?
A reader sent me a link to this law review article which says courts mainly do not find a parent's eavesdropping to be a violation of the Federal Wiretap Act. The first footnote cites these cases: Schieb v. Grant, 22 F.3d 149, 154 (7th Cir. 1994) (acknowledging father’s use of an extension phone to record minor son’s conversations with mother permissible under the Wiretap Act); Newcomb v. Ingle, 944 F.2d 1534, 1536 (10th Cir. 1991) (holding interception by custodial parent of minor son’s conversations with father outside the scope of the Wiretap Act); Anonymous v. Anonymous, 558 F.2d 677, 679 (2d Cir. 1977) (stating husband’s recording of wife’s conversations with minor child excepted under Wiretap Act).
One Delegate Marshall bill I missed
One of the bills proposed by Delegate Robert Marshall but not passed in this past General Assembly session was HB 757, which would have added to the Virginia statute prohibiting same sex marriage the following proviso:
"Any judge who rules the provisions of this section to be unconstitutional shall be deemed to have committed malfeasance in office and may be subject to impeachment under the provisions of Article IV, § 17 of the Constitution of Virginia."
"Any judge who rules the provisions of this section to be unconstitutional shall be deemed to have committed malfeasance in office and may be subject to impeachment under the provisions of Article IV, § 17 of the Constitution of Virginia."
The geography of picking statewide candidates for the Democrats in 2005
This column includes speculation from Professor Sabato that Democrats need a candidate from rural Virginia and a candidate from the Tidewater to run with Tim Kaine in 2005, figuring that Northern Virginia is going Democratic no matter what.
More on Circuit Court Judge Clark, the author
The Charlotte paper has this delightful article about a less than profitable book-signing for Circuit Court Judge Martin Clark, related to his second novel.
The article concludes, "I can promise you that he is a hoot of the first magnitude -- one with smart things to say about writing, the law and rural Southern life."
The article concludes, "I can promise you that he is a hoot of the first magnitude -- one with smart things to say about writing, the law and rural Southern life."
Prince William court's case management system going online
The Washington Post has this article ("Courthouse Documents To Be Easier To Retrieve," 6/6/04) about the soon-to-be-launched electronic case management system in the Circuit Court of Prince William County.
VDOT needs new acronym for Southeastern Expressway?
The Norfolk paper includes this column concluding that VDOT needs a new term when referring to the Southeastern Expressway project, known internally as "SEX."
On outdoor-dining in downtown Roanoke
The Richmond paper has this item ("LETTER FROM ROANOKE: Outdoor-dining boom creates buzz in a revived downtown," 6/6/04) about the growth of outdoor dining at restaurants in downtown Roanoke.
Subscribe to:
Posts (Atom)