Who says the wealthy aren't liberals?

A while back, I read this:

"Sure, Harvard has some professors who make Sen. Ted Kennedy look like a founding member of the Moral Majority. Yet, as a whole, the institution is extremely conservative.

This is evidenced by the fact that its rich and powerful alumni continue to donate zillions of dollars to the school each year. Surely, these privileged people aren’t donating money to a school bent on destroying the social order. They may be eccentric, but they’re not crazy."

At about the same time, I read something like the WSJ report described here by Professor Bainbridge, the gist of which is "how the Democrats have become the party of the elites and the GOP the party of the working middle."

It struck me at the time there is some conflict between these two points of view.

Logging on the Appalachian Trail - hype or horror?

The AP has this story that says some group called The Campaign to Protect America's Lands has issued a press release to the effect that 163 miles of the Appalachian Trail, including some in Southwest Virginia and Northeast Tennessee as shown here and here, are in forest areas where the Bush administration would permit logging, but the Forest Service that won't happen.

I don't know what to make of this, but their maps are really cool.

America's First and Last Frontier

The Akron, OH paper has this review and the Rappahanock paper has this review of The Appalachians: America's First and Last Frontier, a new book soon to be a movie.

Topics in the book include: "the musically talented Carter family, old-growth trees in North Carolina, the infamous Hatfield-McCoy feud, life in Stearns, Ky., storytelling and music in the mountains, the beginnings of the country music recording industry in 1927 in Bristol, Tenn., religion in Appalachia, and life in West Virginia (by U.S. Sen. Robert C. Byrd)."

The film will be shown on PBS next spring.

The Sierra Club has this link about the film.

The Pine Mountain Trail

Here is the website for the Pine Mountain Trail Conference, which is working on a hiking trail along the Virginia-Kentucky border between the Breaks Interstate Park and Cumberland Gap National Historical Park.

The neighbors have 6 children, so it must be true

This post from the Volokh Conspiracy explains that conservative, religiously minded Americans are doing a better job than other groups of accepting the Biblical invitation to "be fruitful and multiply."

Tennessee courts struggling with Blakely

The Johnson City paper (registration required) has this article ("Supreme Court ruling leads to confusion for local lawyers, judges," 9/6/04) focusing on the state court effects in Tennessee of the Supreme Court's ruling in Blakely.

Defense lawyers quoted in the article conclude the impact will be revolutionary in Tennessee, as it will limit the issues a judge may consider in deciding whether to impose an enhanced sentence to the prior criminal record of the defendant.

A prosecutor notes that one court in Western Tennessee has conducted a bifurcated criminal trial, to allow the jury to decide fact issues related to sentencing, but said there is no authority for such bifurcation and that he hopes the legislation will not make bifurcation a future requirement. Bifurcated trials, he says, "could make it extraordinarily complex and greatly increase the backlog of cases."

Virginia law, by contrast, provides for bifurcated criminal trials, apparently without these docket effects.

This page from the website of the Administrative Office for Tennessee's courts, this press release, and this link to the Executive Order itself describe Governor Bredesen's Task Force on the Use of Enhancement Factors in Criminal Sentencing, which will meet against on September 17, as it considers whether a special session of the legislature is necessary to protect the Tennessee Criminal Sentencing Reform Act.

The TnCrimLaw website has a link to this TBJ article on the effect of Blakely in Tennessee.

Health-care benefits and bankruptcy

Via Yahoo, the Chicago Tribune has this article discussing the use of corporate bankruptcies to avoid health-care obligations, highlighted by the Horizon coal case.

Following the bankruptcies of Continental Airlines and others, in 1984, Congress passes 11 U.S.C. 1113 to prevent the use of bankruptcies to rid companies of collective bargaining agreements; in 11 U.S.C. 1114, Congress dealt with benefits for retirees. Nevertheless, the Trib article notes that "Many, including Democratic U.S. Senate candidate Barack Obama, say federal bankruptcy laws need to be changed to prevent companies from declaring bankruptcy, dumping union obligations and then re-forming."

What's new with Al Gore?

The New Yorker has this long article about Al Gore, still an oddity of American history.

One interesting passage was this: "From his reading, online and elsewhere, he has grown more convinced that, in the wake of the Goldwater collapse, in 1964, and the anti-Vietnam War movement, American conservatives were determined to “play a long game” and organize themselves, ideologically, financially, and intellectually, to win national elections and carry out a conservative revolution. Gore is interested in a memorandum written at the request of a committee chairman of the U.S. Chamber of Commerce by a Virginia attorney named Lewis F. Powell, Jr., and dated August 23, 1971, just two months before Nixon nominated Powell to the Supreme Court. The Powell memorandum portrays the American economic system as “under broad attack” by well-funded leftists, who dominate the media, academia, and even some corners of the political world. The memo describes a battle for the survival of free enterprise, and calls for less “hesitation” and “a more aggressive attitude” on all fronts."

Well, I never heard of "the Powell manifesto," but I looked and found this wild article about it, and this wild article about it, and the text is here. I expect that if Justice Powell had not been put on the Supreme Court, the Powell manifesto would no doubt have remained in obscurity.

Virginia counties as anachronisms?

The Newport News paper has this editorial characterizing the boundaries and organization of a Virginia county as an anachronism.

Bizarro World is not like the Fourth Circuit

In this post from Professor Berman, he takes apart an amicus brief filed by a group of former federal judges in the Supreme Court's pending sentencing cases, as describing a Bizarro World in which federal judges have wide sentencing discretion (unlike the 6% departure rate in the Fourth Circuit). In the brief, the former judges take the view that a jury trial is not required because of the discretion federal judges have in sentencing.

Professor Berman also has some fun explaining, from both Seinfeld and Superman comics, the concept of Bizarro World. There is a lot of Seinfeld and Superman stuff on the internet, including this site where you can watch their American Express commercials.

Editorializing on railroads for people in Virginia

The Fredericksburg paper has this editorial prising the concept of using the railroads to relieve the auto traffic.

From Friday, the Roanoke paper had this editorial that says people have to be willing to pay for new passenger rail service in Virginia.

Professor Turley's take on Virginia's law against adultery

Law Professor Jonathan Turley offers his criticisms of the past and present of Virginia's law criminalizing adultery in this piece from the Washington Post.

Jens Soering releases a book on prison reform

The Charlottesville paper reports here ("Soering releases book on prisons," 9/5/04) that convicted murderer Jen Soering has written a book about prison reform.

Here was my last Jens Soering post. Here, here and here are some Cavalier Daily articles on former University of Virginia students Soering and Elizabeth Haysom.

New Virginia law gives students alternatives to dissecting frogs

The AP has this report on a new Virginia law that requires school divisions "to inform all students they can decline to dissect without penalty, and instructors must provide them with alternative learning tools, including computer programs, Internet tutorials and plastic models." The article quotes someone from PETA as saying, "We believe that dissection in the classroom is an antiquated method of dissection and promotes the widespread abuse of animals."

The article also quotes education officials who were mostly critical of the new law, as another infringement on the prerogatives of teachers. One official said: "I wish I could do that when I had to read Shakespeare or Homer or learn all four verses of the 'Star Spangled Banner,'" which makes me wonder what that guy has against Shakespeare, Homer, and the Star Spangled Banner.

ah, haiku

An e-mail from me sparked this David Giacalone (not Giacolone) post.

Hokie Bird Red and Hokie Bird White

The Richmond paper had this article ("Virginia Tech adopts official school wine," 9/4/04).

I was under the misapprehension that Boone's Farm Apple Wine was the official wine over in Blacksburg.

October surprise?

This AP story quotes a State Department official as saying "I would be surprised but not necessarily shocked if we wake up tomorrow and he's been caught along with all his lieutenants." I wonder if this means they're paying time-and-a-half to the Pakistanis to get this done before November.

Property owner protests with polka dot paint job

The Newport News paper reports here ("Polka dots spark protest," 9/3/04) that a Williamsburg property owner faces legal action from the City of Williamsburg for painting the shutters on his house with fluorescent orange polka dots, which was done in protest after the City complained about peeling paint.

Virginia Cavaliers 44, Temple Owls 14

Well, I didn't go to this afternoon's Virginia game at Lincoln Financial Field, but apparently, my absence did not affect the outcome.

The worst development in the stands since Coach Groh came on the scene is not the ouster of the Pep Band, but rather the promotion of orange t-shirts. Orange is the color of the college teams in Knoxville, Syracuse, Clemson, and Miami.

Bristol's Rhythm & Roots reunion

The next big thing in Bristol is this year's Rhythm & Roots reunion, September 17-19 - an incredible assortment of live music. 

Civil liberties groups side with U.S. prosecutors in e-mail privacy case

How Appealing has this post with links to articles about the federal government's petition for rehearing en banc in the First Circuit case where the court held a criminal defendant accused of reading stored e-mails had not committed a federal crime, and also with a link to an amicus brief filed in the case by advocates for e-mail privacy. In this post, Jerry Lawson has a link to this Wired news article on the case.

The summary of argument from the amicus brief is this:

"This case has repercussions far beyond a single criminal prosecution. The panel opinion effectively rewrites the field of Internet surveillance law in ways that no one in Congress ever imagined. As the New York Times editorial on the case demonstrates, the panel opinion has dramatic and disturbing implications for Internet privacy. The opinion also raises profound constitutional questions by unhinging the Wiretap Act from the Fourth Amendment decision it codifies, Berger v. New York, 388 U.S. 41 (1967). The panel’s statutory construction may render portions of the Internet surveillance statutes facially unconstitutional. The petition for rehearing or rehearing en banc should be granted."

Edwards' income - $39 million

This report says the professional income for John Edwards in the past decade was $39 million.

U.S. appeals WV federal court ruling on mountaintop mining

The Charleston Gazette has this report on the government's appeal from the July 8 ruling by Judge Goodwin in the mountaintop mining litigation. Goodwin ruled that the Army Corps of Engineers "could no longer approve mining valley fills through a streamlined permit process meant only for activities that cause minor environmental damage. Rather than these “general” or “nationwide” permits, Goodwin said, coal companies must go through individual permit reviews when they propose to bury streams with waste dirt and rock."

How does Virginia's Speed Trial Act affect the sniper Muhammad second trial?

The Washington Post tries to unravel the intricacies of Speedy Trial Act arguments being raised by lawyers for John Muhammad, in this article ("Sniper Raises Speedy Trial Rule," 9/3/04).

More on new Liberty Law School

Somebody sent me a link to this humor piece published by the ABA e-journal. Apparently, the idea that Jerry Falwell plans to turn out Christian lawyers to infiltrate the legal profession is viewed to be almost as funny as his pronouncement years ago that the Liberty football team would beat Notre Dame.

I believe that there are people - not most, and perhaps not even many - who go to law school, every law school, with the intention of changing the world, and a few of these highly-motivated people manage to pull it off, and when they make their mark, their law schools send out a press release bragging of the connection. Some of these people are conservatives and even Christians, and I won't be surprised if some Liberty graduates create some noticeable ripples in the flowing river of the law - and that this happens even before Liberty beats Oklahoma or even Notre Dame in football.

The Star Wars-Republican connection

According to this post from L, L, L, either Zell Miller or President Bush is actually Emperor Palpatine from Star Wars.

Record enrollment at ASL

According to this press release, the total enrollment at the Appalachian School of Law has reached a new high of 371.

The real Governor's race on Saturday was along the Creeper Trail from Abingdon to Damascus

The Bristol paper reports here that Governor Warner was booking on the Virginia Creeper Trail on Saturday, making it the 15 miles from Abingdon to Damascus in just over an hour.

Circuit court judge charged with DUI, concealed weapon

The AP reports here that a Virginia circuit court judge from an eastern county has been charged with DUI and violation of his concealed weapons permit.

The article notes that whether the judge "is reprimanded or removed from the bench is at the discretion of the state Supreme Court. Such judicial disciplinary matters are usually handled privately."

Sort of like those old golf balls filled with feathers

The AP reports here that prison officials in Oklahoma have recovered a basketball filled with marijuana.

It must have been an old ball, from back before air-filled basketballs were invented.

Not claiming to have invented the Internet

Somebody who works for Senator George Allen declares here, on the topic of community colleges, that Allen as Governor of Virginia "[e]stablished . . . the Appalachian School of Law in Grundy." I wonder what that means, exactly.

Somebody files 336-page complaint against Virginia town

I am dumbfounded by this report, which says somebody has filed a complaint of 336 pages against the Town of Colonial Beach, and quotes plaintiff's counsel describing the first eight pages as "nothing more than the starter's pistol to the marathon in this year of the Twenty-eighth Olympiad."

Holy catbirds, how could there be such a complaint? And, what will any of the judges of the E.D. Va. make of such a thing?

Not enough publicity for the Schrock story?

This post from the Campaign Desk suggests that the major media did not give enough attention to the story of the resignation of Congressman Schrock from Virginia.

Virginia court of appeals takes a pass on claim over 1677 treaty with Indians

In Mattaponi Indian Tribe v. Com., the issue was whether the circuit court erred in dismissing the claims of the Mattaponi Indians based on the 1677 Treaty at Middle Plantation, which the Court described as follows:

"Entered into shortly after Bacon’s Rebellion, the treaty between the “Dread Sovereign” King Charles II and the “Kings and Queens” of several Indian tribes sought to establish “a good Peace with the Neighbour Indians” and the English settlers. One provision of the 1677 treaty states that “no English shall Seat or Plant nearer than Three miles of any Indian Town; and whosoever hath made, or shall make any Incroachment upon their Lands, shall be removed from thence . . . .” Another provision allows “Indians” to hunt, fish, and gather vegetation not “useful to English” on English land provided they obtain a “certificate” from a magistrate. Finally, Article XVIII of the treaty includes what appears to be a form of dispute resolution provision:

That upon any Discord or Breach of Peace happening to arise between any of the Indians in Amity with the English, upon the first appearance and beginning thereof, and before they enter into any open Acts of Hostility or War one against another, they shall repair to His Majesties Governour, by whose Justice and Wisdom
it is concluded such Difference shall be made up and decided, and to whose final Determination the said Indians shall submit and conform themselves."

Ah, but the Court of Appeals concluded this part of the case is outside its jurisdiction, and shifted the case over to the Virginia Supreme Court.

Don't even take him to a tango, Dennis Kennedy likes that old-time blogroll

This post from Dennis Kennedy says some of the old blogs are still the best ones, citing as an example BeSpacific, and some of the new ones have got no legs.

Hey, I remember the old days myself, from way back in 2003.

Hugh Lessig says blogs so darned exciting and scary

Daily Press commentator Hugh Lessig sayshere ("Blogs: The exciting and scary part of American politics," 9/1/04) that blogs "are changing - and have changed - how voters get their information, but questions surround their new role in American politics."

South Henry Street, then oyster shooters at Berrets!

A big bunch of constitutional scholars are gathering in October in Wiliamsburg, for theWilliam and Mary Law School's Supreme Court Preview.

The press release says the participants will include:

Joan Biskupic, USA Today; David Savage, Los Angeles Times; Linda Greenhouse, New York Times; Charles Lane, Washington Post; John Blume, Cornell Law School; Michael Carvin, Jones, Day, Washington D.C.; Erwin Chemerinsky, Duke University School of Law; Walter Dellinger, O'Melveny & Myers, Duke University School of Law; Lyle Denniston, SCOTUSblog; Kenneth Geller, Mayer, Brown, Rowe; William Hurd, Troutman Sanders, Washington, D.C.; Neal Katyal, Georgetown Law Center; Dahlia Lithwick, Slate; John McGinnis, Northwestern University Law School; Thomas Merrill, Columbia Law School; Stuart Taylor, National Journal; Amy L. Wax, University of Pennsylvania Law School; Stephen Wermiel, American University, Washington College of Law; and Neal Devins, Davison Douglas, Michael Gerhardt, Alan Meese, Linda Malone, Kathy Urbonya, Jim Dwyer and William Van Alstyne, all of the William and Mary School of Law.

What is frightening is that I know of most of these people. My own Con Law professor from my student days in Williamsburg, alas, vanished from the scene. I don't know what became of her.

Can Liberty Law School be accredited?

Law.com has this article describing "questions" about whether the new law school at Liberty in Lynchburg can ever be accredited.

Since Regent is accredited, and Ave Maria is provisionally accredited, I'd have to say that this article is mainly full of anti-Christian nonsense, which is never hard to find, but probably the whole thing is part of the marketing plan cooked up by Rev. Falwell. I'm thinking maybe he called up Barry Lynn and said, hey, why don't you put out some outrageous quotes against my law school, and that will get us some publicity, and help with our admissions and fund-raising, and if you do, I'll treat you to a fried-chicken dinner after church the next time you come to see us down at the Thomas Road Baptist.

The Southwest Virginia-Schwarzenegger connection

The LA Times has this amusing story ("Far From Left Coast, Many See Schwarzenegger as Mr. Right," 8/31/04), about the views of Southwest Virginians on Arnold Schwarzenegger.

The article, with a dateline from Vinton, begins:

"At the Roanoke County GOP's annual Shrimpfest, the subject was November's national election. The crowd and speakers were as spicy as the fish, spitting out fiery, conservative opinions against abortion, gay rights and restrictions on gun ownership.

But as these southwest Virginians watch this week's Republican National Convention, many said, the speech most are interested in hearing is tonight's address by California Gov. Arnold Schwarzenegger, a self-styled moderate. That's because from afar, Schwarzenegger looks to many very conservative Republicans like one of their own."

The article quotes one critic as saying Arnold is like a "cartoon," but continues:

"If so, it is a cartoon for which people here in Vinton, a town of 7,782 on the city of Roanoke's southeastern border, have fallen.

More than 200 Republicans paid $20 per ticket to attend the county GOP Shrimpfest at a senior center in the middle of town, across the parking lot from the Vinton War Memorial. Many here said they had heard more about Schwarzenegger than any politician in America. Some said they were fans of his movies. A few had spotted news reports that Schwarzenegger ordered two pairs of shoes from Italian shoemaker Silvano Lattanzi just for the convention."

The article concludes with comments from Kevin Triplett:

"Some Virginia politicians seem eager to borrow from Schwarzenegger's political playbook.

Kevin Triplett, a NASCAR executive who is running for Congress here, disagrees with the California governor on nearly every social issue, but nevertheless wants to emulate him.

"He's an example to the party, that someone can come in without holding office and make an impact," Triplett said. "Plus, he's Arnold. And that plays well anywhere.""

Blogger who named Schrock vows more to come

The Hill has this article in which the blogger who made claims about Virginia's Congressman Schrock vows to make similar disclosures about others.

Richlands paper critical of Judge Smith and Judge Vanover for methadone rulings

In this editorial, the Richlands paper takes on the rulings of the Tazewell County Circuit Court against a woman who while on probation wanted to take methadone pursuant to a doctor's prescription.

The dude who swallowed Iridium

This tale from Waldo about the guy who swallowed a pellet of Iridium makes me think of the story of the Bristol lawyer who was playing ball with his son and somehow got the cigarette he was smoking knocked out from his lips and then it went lit-end first into his nose.

Some stuff is just difficult to explain.

Martinsville boy killed in fraternity house fire was son of circuit court judge

The Martinsville Bulletin has this account of the services for Howard Stone, who died at age 19 on campus at the University of Mississippi at the start of his sophomore year.

I can't imagine it.

The first time I came home from college, I took a Trailways bus from Charlottesville (where first years could not have cars) and my dad met at the bus station in Abingdon and gave me a big hug when I stepped out onto the pavement, and I wondered what was the big deal.

Coal and corn-pipe country?

In another Mr. Kilgore comes to New York story, the Washington Post says here ("Kilgore Moves to Raise His Profile -- and Funds," 8/31/04) that Kilgore is from "coal and corn-pipe country." It also says that Kilgore speaks with a "a soft, twangy, mountain drawl."

Maybe the Post thinks that instead of being elected governor, Jerry should be on display as some sort of anthropological specimen, "the mountain man from corn-pipe country."

Circuit court rejects sniper Muhammad's double jeopardy claim

The Washington Post reports here ("2nd Trial Of Sniper Is Ruled Lawful," 8/31/04) that the Fairfax County Circuit Court has rejected the argument that the second prosecution of sniper John Muhammad would be double jeopardy.

The Fifth Amendment says no person shall "be subject for the same offense to be twice put in jeopardy of life or limb."

Norfolk paper says spotlight on Kilgore as state party leader

The Norfolk paper says here ("Bright lights, big pressure for Kilgore," 8/31/04) that Attorney General Kilgore has more to do that go to receptions in NYC.

Norfolk papers reviews plans to lure people to Dickenson County with bluegrass

The Virginian-Pilot's downhome music series continues today with this report on Dickenson County and Ralph Stanley.

Republican Congressman from Virginia resigns

The AP reports here that Congressman Ed Schrock a Republican who represents the 2nd District of Virginia has resigned.

Various bloggers have comments, explanations, theories, and links to the stuff that's been out (so to speak) on the Internet for a while on this topic, such as here and here. (Try Feedster or Bloglines or Technorati or Kinja or Daypop to see a selection of posts - search for "Schrock" or "Ed Schrock.") I would have linked to it before now but who wants to be sued over a weblog?

The Kobe Bryant juror questionnaire

Via So Cal blog, here is the questionnaire for would-be jurors in the Kobe Bryant case, which was somewhat interesting to me before the Lakers got shelled in the NBA finals and traded away Shaq and all the other grown-ups they had on their team.

Judge Michael grants suppression motion in warrantless search case

When you read the facts as written by Senior Judge Michael in U.S. v. Gillespie, you get the impression that law enforcement had a pretty good idea what they would find inside the apartment (where the people had just run out the backdoor into the snow), but their plan to get inside (they heard a baby crying somewhere) was kind of lame. They went into the apartment anyhow, and found no babies but did find scales and baking soda and guns and cocaine.

Scott County music makes Norfolk paper

The Virginian-Pilot has this article on country music in Scott County at the Carter Family Fold.

Facts about the Virginia delegation at the RNC

The AP has this collection of facts about the Virginia delegation to the Republican National Convention going this week.

Somewhere, I suppose, there is a list of the actual names of the Virginia delegates, but I can't seem to find it.

The new U.Va. marching band gets started, but the Pep Band still lives

The Charlottesville paper has this report on the beginning of Year ONE for the U.Va. Marching Band, while the Hook reports here that the Pep Band is still alive at age 30.

Can county supervisor participate in meeting by telephone?

This article asks whether a member of a county board of supervisors can participate in a meeting by conference call, when she is unable to attend because of health problems.

I believe the answer under FOIA is no. Va. Code 2.2-3708(A) provides: "It shall be a violation of this chapter for any political subdivision or any governing body, authority, board, bureau, commission, district or agency of local government or any committee thereof to conduct a meeting wherein the public business is discussed or transacted through telephonic, video, electronic or other communication means where the members are not physically assembled."

Vote-buying in Appalachian states

The NY Times has this article ("Where Prosecutors Say Votes Are Sold," 8/29/04) that says "the mountain tradition of vote-selling" has not disappeared, describing vote-buying cases from Eastern Kentucky and West Virginia.

Deputy clerk from circuit court plays organized football on the side

The Washington Post has this article ("Courthouse Clerk Blows Off Steam on the Football Field," 8/29/04) about a deputy clerk for the Circuit Court of Prince William County, who is also a football player.

Norfolk paper discovers music in Southwest Virginia

The Norfolk paper has started a series on "mountain music" in Western Virginia, beginning with this report from Floyd County and moving next to Scott County on Monday.

More on the town council that went over against Wal-Mart

The Richmond paper has this report ("Council looks to switch sides," 8/29/04) on the new Town Council in Front Royal, elected to fight the new Wal-Mart, that has intervened in litigation on the side of those who opposed the rezoning decisions by the previous Council.

Wanting more ways to get post-conviction relief

The Roanoke paper has this editorial ("Evidence rules still hinder justice in Virginia," 8/29/04) claiming that more needs to be done to allow convicted persons to prove their innocence in Virginia.

The Norfolk paper has this editorial ("State cannot ignore 3 wrong convictions," 8/29/04), which more or less says the same thing. The Norfolk paper points to the cases of Marvin Lamont Anderson, Julius Earl Ruffin, and Arthur Lee Whitfield as three Virginians exonerated by DNA evidence after years in prison. The Virginian-Pilot notes that these three owe their freedom to someone who went the extra mile in preserving evidence:

"The common thread in these human horror tales — beyond the black skin of all three of the wrongfully accused — is their saving grace: a deceased state serologist named Mary Jane Burton.

Had Burton not defied usual policy at the Virginia Division of Forensic Science during the 1970s and ’80s by methodically attaching samples of biological evidence to her files, Anderson, Ruffin and Whitfield would have gone to their graves tarred as rapists. Whitfield would still owe the state 41 more years, Ruffin five life terms."

McSweeney - tax relief not Warner's idea

In the latest column from Patrick McSweeney, he says, among other things, that Governor Warner had no choice in dealing with the surprise surplus:

"What was especially galling to some legislators was that Warner made it appear in announcing the acceleration of the personal exemption that it was his initiative. In fact, it was required by the General Assembly. Warner even proposed an amendment earlier this year to relax that statutory requirement so that surplus revenues could be used for purposes other than tax relief. His amendment failed."

You can't keep them down on the farm in Emory after they've seen Baghdad

The Roanoke paper has this delightful article ("Never again say football is war," 8/28/04) about five football players from Emory & Henry College who went to Iraq as part of the 1032nd and made it back from over there to back in school, as changed men.

Blakely meets the Richard Burrow case

The Roanoke Times has this article ("Burrow's charges should be separate," 8/28/04) about some rulings by Senior Judge Turk in the Richard Burrow case, which is scheduled to be retried starting September 17 in Charlottesville. Burrow is accused of illegal acts in connection with fundraising for the D-Day monument outside Bedford.

Regarding the tinkering with the indictment to include language dealing with the Blakely problem, the article says this:

"Turk did rule that he would strike language in the most recent indictment against Burrow that deals with the issue of sentencing, should Burrow be convicted of any charges.

Prosecutors returned to the grand jury earlier this month and sought a new indictment in light of a recent U.S. Supreme Court decision. The high court's ruling raised the question of whether any factors that could potentially make a defendant's sentence longer should be decided beyond a reasonable doubt by a jury, rather than by a judge at sentencing on a lower standard of proof.

As the new indictment stood, the Charlottesville jurors would consider not only Burrow's innocence or guilt, but if they decided to convict, they would also decide such issues as how much fraud Burrow should be held responsible for.

But Burrow's attorneys, John Lichtenstein, John Fishwick and Greg Johnson, have argued that the law is in flux, because it is still unclear whether the Supreme Court decision applies to the federal system.

They also argued that the Department of Justice has acknowledged that it is "constitutionally unworkable" to try sentencing issues before a jury. And they argued that jury consideration of the sentencing issues would be like a trial within a trial, and they would need more time to prepare.

Turk ruled that the sentencing language should be struck from the new indictment, but did not grant the defense attorneys' request that it be dismissed altogether.

"It seems to me like it ought to be tried like we've always tried a case," Turk said."

Is there an intentional infliction of emotional distress claim when some other claim is available?

In this post from Jottings by an Employer's Lawyer, a recent decision by the Texas Supreme Court is described, in which the Court reversed a $10 million sexual harassment verdict, where the plaintiff could have (and had) proceeded under the Texas Commission on Human Rights Act, concluding that the tort of intentional infliction of emotional distress was intended only to apply where there was no other remedy.

This is very interesting.

Should I save this stuff for the presidential library - or take it on to dump?

In the backseat of my car are two boxes of papers that are mostly the record of my high school days. Twenty years later, Mom has decided to out this archive from her house. Included among them are papers showing that I really was, notwithstanding all evidence to the contrary, a kid who scored well on standardized tests, well enough perhaps to have qualified for at least one famous group of smart people. Then, I went off to college and discovered, much to my surprise, that I was probably the dumbest kid out of 20 on my hall in the first year dorm at the University of Virginia. (I could, however, then and perhaps even now work the Washington Post and NY Times weekday crosswords better than the engineering students.)

Virginia Supreme Court removes a General District Court judge

The Norfolk paper reports here ("Portsmouth judge taken off bench by court order," 8/28/04) and the AP reports here that the Virginia Supreme Court has ordered the removal from the bench of a General District Court judge in Portsmouth, for as-yet unknown reasons.

The articles note that the judge, Hon. Archie Elliott, Jr., was disappointed that he was not elected chief judge for his district: "After losing the election for chief judge, Elliott wrote and distributed letters to his colleagues, legislators and other judges saying the selection process was unfair. He also said that blacks were underrepresented as clerks in the court’s criminal division and under-utilized as substitute judges." Elliott was first appointed as judge in 1979.

Best Bainbridge post ever - biscuits and gravy

Professor Bainbridge proves his Southwest Virginia ancestry with this post explaining how to make biscuits and gravy, although I must confess that these days I mostly get mine from Hardees, since my wife from Northern Virginia has never understood the whole concept.

Paula Jones lawyer at the Biscuit Connection

This morning I saw Gil Davis at the place where I get biscuits, Gil Davis the once and future candidate for statewide office in Virginia and the litigator from the Paula Jones case against President Clinton. I suppose he is in town for the Bristol races.

Speeder's sentence reduced from 20 days to 4 days

Following up on an earlier story, the Richmond paper reports here ("Speeding-case jail term is cut to four days," 8/26/04) that on appeal, a speeder caught going 90+ mph had his sentence reduced to 4 days in jail.

Sixth Circuit en banc says OK to USSG

In U.S. v. Koch, the Sixth Circuit sitting en banc, in an opinion by Judge Sutton, concludes that the U.S. Sentencing Guidelines are constitutional, notwithstanding Blakely. The vote was 9-5. Professor Berman has excellent comments here and here.

Virtual tour of the Coalfield Expressway

The Coalfield Progress reports here ("CFX animation featured as economic development tool," 8/25/04) that a computer simulation of a drive on the not yet built Coalfield Expressway is being used to market what the road in Southwest Virginia will be like.

The Post's take on the Virginia surplus

The Washington Post has this editorial ("'Surplus' Politics," 8/26/04) on the insignificance of the $323.8 million surplus to a budget of $57.7 billion, particular when VDOT needs another $600 million.

Sanctions of $10,000 for failure to disclose party-defendant's death affirmed

In Glucksberg v. Polan, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener and Michael and Senior Judge Hamilton affirmed the sanction of $10,000 imposed against one of the litigants by District Judge Goodwin, based on these circumstances:

"The sanction resulted from Polan’s failure to properly notify the court, during a proceeding in which he and his father were the defendants, that his father had died and that he was not a co-executor of his father’s estate, as the plaintiffs believed. As a result of these failures, a judgment previously entered in favor of the plaintiffs in the amount of $208,637.50 had to be vacated."

Democrats want registrars across Virginia to check Nader petitions

The AP reports here that Virginia Democrats are demanding that the registrars in the counties and cities of Virginia "compare petition signatures to voter registration cards maintained in their offices to ensure that the signatures on Nader's petitions are in fact valid."

Off-track betting in Southwest Virginia?

The Kingsport paper reports here ("Colonial Downs petitions picking up speed in Scott County," 8/26/04) that betting on horseraces may be an issue on the ballot this fall in Scott County.

Geez, that's incredible. You'd figure that would go over just about as well as a methadone clinic.

Catholics and Baptists unite at Liberty Law School, wherever that is

I enjoyed this Bainbridge post about Catholics (including the Dean) and Baptists (including Jerry Falwell) at the new Liberty law school, until I got to the part where he said it was in "southeast Virginia." No place called the "Hill City" and the "City of the Seven Hills" can be found over in the flatlands of Southeast Virginia.

I myself grew up going to the Abingdon Baptist Church (until we moved away) then was married (by a Jesuit priest) in Holy Trinity Catholic Church in Georgetown.

Will new case for damages from spread of STD lead to ruling on constitutionality of fornication law

The Norfolk paper reports here ("Suit saying man spread herpes could uproot state coitus law," 8/25/04) that a lawsuit brought by a woman who claims a man intentionally infected her with herpes could force the Virginia courts to rule on whether the Virginia fornication statute is unconstitutional, and therefore the woman's damage claim would not be barred by a defense of illegality. Defense lawyers know the case of Zysk v. Zysk, 232 Va. 32, 404 S.E.2d 721 (1990) in which the Virginia Supreme Court held that a woman in similar facts could not recover damages for contracting a disease from a sex partner with whom she was not married, which is illegal under the fornication statute, because as a principle of Virginia law, no recover is allowed for participation in an illegal act (thus modifying the Biblical admonition to something like "the wages of sin . . . is no damages").

The constitutional argument is based on ruling by the U.S. Supreme Court in Lawrence v. Texas, which threw out a criminal conviction for consensual sodomy. Last year, I wrote this post ("The effects of the Texas sodomy case on Virginia law"), concluding that the Virginia fornication statute is likely to be invalid (at least for private, consensual acts). Supporters of the statute might argue, however, that the facts of the Virginia Beach case show why the Commonwealth has a rational basis for a prohibition against unmarried persons having sex, to prevent the spread of disease.

Winchester judge rules Virginia law bars custody based on Vermont same-sex union

In the Virginia case involving the custody dispute between two women over custody of a child, a judge in Winchester recognized the birth mother in Virginia as the sole parent, notwithstanding their civil union in Vermont and some kind of prior visitation ruling made by a court in Vermont.

The Richmond paper has this article ("Judge rules that Va. law voids issue of custody for gays," 8/25/04), which says the judge "based his decision on the state's Affirmation of Marriage Act, a law that took effect in July barring the state from recognizing same-sex civil unions." The Winchester paper has this article ("Custody Ruling Favors Frederick Woman," 8/25/04), which quotes the judge as saying, "As far as Virginia is concerned, nothing is taking place in Vermont," and this article ("Advocates on Both Sides Predict Difficult Outcomes," 8/25/04), which says that prior to the ruling, both sides "had dire predictions if Judge John R. Prosser did not rule in their favor on Tuesday" and quotes the Vermont woman's lawyer as saying that "Virginia should be the Las Vegas of gay divorce." The Augusta Free Press has this article ("Ruling seen as step back for gay rights," 8/25/04). The Washington Post has this article ("Vt. Same-Sex Unions Null in Va., Judge Rules," 8/25/04), which quotes one advocacy group spokesman saying the parentage issue is still unresolved in the Vermont case: "In Vermont, the judge still hasn't figured out how Janet could be a parent. Vermont's civil union law does not address parentage."

The war in Iraq responsible for flooding in West Virginia

According to this editorial in the Bluefield paper, federal money for controlling floods caused by mountaintop mining is being diverted to pay for the war in Iraq.

More on Ralph Nader and the Virginia ballot

Hugh Lessig of the Daily Press has this article ("Nader wins round in Va. ballot fight," 8/24/04), which quotes the Virginia chairman for Nader as saying of AG Kilgore, "Jerry is man of integrity . . .and I don't think he made his decision based on political leanings."

In this article ("State board reverses ruling, allowing Nader on Va. ballot," 8/24/04) from the Norfolk paper, Jim Hopper from the AG's office describes the scene as the Nader petition was presented as chaotic: "the situation was confusing at best,” Hopper wrote.

In the article ("Advice on Nader state bid reversed," 8/24/04) in the Richmond paper, by Jeff Shapiro, a Democratic "spokeswoman" was quoted as saying: "I am not surprised that the attorney general has reversed himself, given the nationwide effort by Republicans to assist Ralph Nader's efforts to get on the ballot."

Does gang activity equal terrorism under Virginia's FOIA?

The Staunton paper reports here ("Council, police to discuss gang activity," 8/24/04) that the city council there is going to have a closed meeting with police to discuss ongoing criminal investigations about gang activity in the city, and as an exception to the open meeting requirements, they are relying on Va. Code 2.2-3711(A)(20), which applies to:

"Discussion of plans to protect public safety as it relates to terrorist activity and briefings by staff members, legal counsel, or law-enforcement or emergency service officials concerning actions taken to respond to such activity or a related threat to public safety."

New council with new lawyer switches sides on Wal-Mart zoning issue

The AP reports here that the new town council in Front Royal has changed lawyers and is looking to join a lawsuit challenging the rezoning for a proposed Wal-Mart that was passed by the old town council.

Not all Jerry Kilgores with same view on taxes

Howard County, Texas commissioner Jerry Kilgore was quoted here regarding a proposed 3% tax increase: "we need it."

Virginia polls, by race

RedState in this post ponders some recent polling data for Virginia about the presidential race and speculates that President Bush might actually get more than 20% of the votes of black Virginians, opining that "breaking the 20% barrier could help break the stigma that voting Republican and being African-American are no longer contradictory."

An old fellow I used to know from Scott County tried to explain to me one time that in Virginia in the the 1950s, the Republicans were viewed as the party of the blacks, and Ted Dalton suffered with anti-segregationist white voters in his gubernatorial campaigns because of President Eisenhower sending troops to Little Rock. I don't know whether that would also mean that those African-Americans who were able to overcome the various obstacles to voting mostly supported for Republicans.

Judges - hot or not?

Inter Alia links here to Rate Philly Judges, where the judges of Philadelphia are getting rated by somebody on a scale of 1 to 5. (These ratings appear to be somewhat less unruly than those offered by Underneath Their Robes.)

Photos of victims worn by courtroom spectaors did not impair right to fair trial

In Cooper v. Com., the Virginia Court of Appeals in an opinion by Judge McClanahan joined by Chief Judge Fitzpatrick and Judge Benton concluded that the capital murder defendant was not denied a free trial by the presence of spectators in the courtroom wearing badges with a picture of the victims.

No res judicata applicable among criminal conspirators

In Waters v. Com., the Virginia Court of Appeals in an opinion by Judge Frank, joined by Judges Benton and Elder, rejected the appellant's argument that the Commonwealth was barred from prosecuting him for the felony of malicious wounding by mob after a co-conspirator was separately convicted of the lesser included offense of assault and battery by mob.

No success for Jens Soering for latest appeal

In Soering v. Warden of Brunswick Correctional Center, the Fourth Circuit in a per curiam decision for the panel of Judges Motz, Gregory, and Duncan dismissed on procedural grounds the appeal of Jens Soering from the denial by Judge Kiser of his latest petition for post-conviction relief.

This blog gets a hit once every week or two from someone searching Google for links about Jens Soering and Elizabeth Haysom.

Big day for Bristol bar

At today's Bristol Virginia bar meeting, the speakers were a woman from the HELP House, which is a supervised visitation center; the U.S. attorney for the Western District of Virginia, John Brownlee; and State Senator William Wampler. Responding to begging and pleading from the bar president, there were about 35 attendees, counting guests, which is a very high turnout.

FLSA cheatsheet

Via Benefitsblog, the Ogletree firm has this cheatsheet for applying the revised overtime rules that went into effect this week.

A couple of my favorite D.C. lawyers are with the Ogletree firm - Bill Althen and John Woodrum.

Police officer testifying at grievance hearing not speaking on matter of public concern

In Kirby v. City of Elizabeth City, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judge Williams and Senior Judge Hansen from the Eighth Circuit, affirmed the entry of summary judgment for a locality on a public employee's First Amendment speech, Equal Protection, and First Amendment retaliation claims. On the speech claim, the appeals court concluded that the plaintiff's remarks at a public hearing on a grievance brought by another employee did not constitute speech on a matter of public concern. On the retaliation claim, the Fourth Circuit concluded that the plaintiff had a freedom of petition claim involving matters of public concern, but the individual defendants were entitled to judgment on qualified immunity - because government officials cannot be liable for "bad guesses in gray areas" and the City was not liable for lack of a custom, policy, or practice.

(I'm always on the lookout for those bad guesses in gray areas and trying to avoid those customs and policies.)

I'm not sure why, but there were a bunch of amici in this case: for the plaintiff, the National Organization of Police Associations, the Fraternal Order of Police, the Professional Firefighters & Paramedics of North Carolina, the North Carolina Association of Educators, and the North Carolina Academy of Trial Lawyers; and for the defendants, the North Carolina Association of County Commissioners and the North Carolina School Boards Association. The trial court judge, by the way, was the Fourth Circuit nominee, Chief Judge Terrence Boyle of the Eastern District of North Carolina.

$20 stolen from a Best Western motel equals impact on interstate commerce

In U.S. Hemingway, the Fourth Circuit in a per curiam opinion for the panel of Judges Michael, Motz, and King concluded, among other things, that the requirement of impact on interstate commerce necessary to sustain a conviction under the Hobbs Act was met where the evidence showed that $20 was stolen from a Best Western motel.

Post-tax increase, Governor Warner declares tax refund

The AP reports here that Governor Warner has declared the Commonwealth has too much money, and therefore $100 increase in the personal exemption from the income tax will be implemented a year earlier than was previously planned.

Delegate Kilgore says no to methadone clinic in Scott County

The Kingsport paper reports here ("Delegate says methadone clinic not 'in the best interest' of Scott County," 8/24/04) that Delegate Terry Kilgore has written to state officials declaring his view that a proposed methadone clinic in Scott County, Virginia, is a bad idea, partly because it would serve a bunch of Tennesseans.

Reversal of fortune for Nader in Virginia

What strikes me as bad about this AP story on the reversal on Ralph Nader's petition to get on the ballot in Virginia is that it gives the impression that somebody at the State Board of Elections is just making stuff up, and for a while it was working on the Attorney General's office.

Don't tell the RIAA - details of the only song I ever downloaded with KaZaa

Maybe I'm telling tales on myself, but the only song I ever downloaded via file sharing was "My Maria" by Brooks and Dunn. I guess that's sort of like going into a bar with a fake ID and ordering a diet Pepsi.

It says here they will play the Republican Convention, so maybe that's one part I'll watch.

Virginia as the Reno for same-sex unions?

This editorial from the Norfolk paper says the new Virginia law on same-sex deals may "make Virginia a haven for gay couples looking for a quickie divorce. Cross the border, and — Poof! — your civil union disappears. Virginia is for ex-lovers, in other words."

Ah, there's a lot wrong with or at least unanswered by this editorial, but I don't have time to track it down this morning.

John Edwards in Roanoke

Documenting Democracy has this stash of photos from Vice-Presidential nominee John Edwards' stop in Roanoke on Saturday.

More on the reconsideration of Nader in Virginia

The Jaded JD has this post with more on the "Ralph Nader's petition may be reconsidered" story.

Virginia's rural vote for Kerry?

The Washington Post has another story ("Rural Va. Economy A Chance For Kerry," 8/22/04) about how Kerry has a chance in Virginia, this time looking at "the rural" vote.

I think that Speaker Howell was correct when he said that if Kerry takes Virginia, he'll take 40 other states - which could happen, but if it does, it won't be because of anything the Kerry campaign did or said in Virginia, and Bush will still do better with the rural vote than the urban vote, even in Virginia (except in the usual places, like Dickenson County).

Ouch, AG's office has to reconsider advice on Nader's petition

The Richmond paper reports here ("State reconsiders Nader's bid," 8/22/04) that the Attorney General's office, led by a Republican elected official, is considering whether to reconsider its earlier advice to the State Board of Elections, because it might have been somehow bamboozled on the facts by the Board's Democratic-appointed secretary.