Ouch

Well, we had a trial this week and lost. The Kingsport paper has this account.

As I've written before, I've been in a number of these Elrod cases, and the Democrat side has won every time, as plaintiffs and as defendants, regardless of the judge or the jury division (Big Stone Gap, Abingdon, Roanoke), except for one case where the verdict was overturned on appeal.

In law school, I met John Tucker, the husband of Professor Jayne Barnard, who represented the plaintiffs in the Elrod case, and who wrote a lively and entertaining book about that case and others from his law practice in Chicago.

In one case, we got a remittitur at the trial court level, from $85,000 to $15,000 (then won outright on appeal). In the district court, we made these arguments, back in 1998:

"At trial, the defendant moved for judgment as a matter of law on emotional distress damages, citing the Fourth Circuit’s decision in Price v. City of Charlotte, 93 F.3d 1241 (4th Cir. 1996). The Price court dealt with two issues related to damages. One was the quantity and quality of proof necessary to support a damages claim. The other was the kind of causation that must be shown for the plaintiff to recover.

In Price, the Court noted that "[t]raditionally, common law courts have been reticent regarding compensatory damages in the absence of a physical injury.” 93 F.2d at 1250. "Empathizing with the trepidation of common law courts in analyzing such claims, the federal courts have recognized that emotional distress claims arising from constitutional violations are not immunized from the nebulous, speculative character that plagues their common law analogues." Id. The Court observed that "the only evidence of Appellees’ emotional distress was their own testimony." Id.

"[T]he case law reveals that courts scrupulously analyze an award of compensatory damages for a claim of emotional distress predicated exclusively on the plaintiff's testimony." Id. (citing cases). "If, as in the instant appeal, 'the part[ies] provide the sole evidence [of emotional distress, they] must reasonably and sufficiently explain the circumstances of [their] injury and not resort to mere conclusory statements . . . and seriatim recitations of 'depression' or 'hurt feelings' as evidence of emotional distress offered by the plaintiff fail to meet this standard." Id. "A plaintiff asserting a constitutional violation, therefore, must produce evidence of 'demonstrable emotional distress' or 'demonstrable mental anguish.'" Id.

The Price court examined a number of opinions where emotional distress verdict were rejected and distilled the factors on which the courts relied. Other later opinions are consistent with the analysis in Price. In Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996), the Fifth Circuit struck the emotional distress award in a section 1981 case and directed the court on remand to award only nominal damages. The Court observed:

In order to establish intangible loss, we recognize that Carey requires a degree of specificity which may include corroborating testimony or medical or psychological evidence in support of the damage award. . . . Hurt feelings, anger, and frustration are part of life. Unless the cause of action manifests some discernible injury to the claimant’s emotional state, we cannot say that the specificity requirement of Carey has been met. Consequently, based on the above reasoning, we hold that the district court abused its discretion in awarding emotional distress damages to Brown on his § 1981 claim. We vacate the district court's $40,000 emotional distress award and remand the case with instructions for the district court to award nominal damages.

Patterson, 90 F.3d at 940; see Annis v. County of Westchester, 1998 WL 49317 at *10 (2d Cir. 1998) (vacating verdict for employee-plaintiff on grounds that plaintiff’s uncorroborated testimony was insufficient to warrant an award of emotional distress damages, where there were no physical manifestations and plaintiff remained employed).

The same defects in plaintiffs’ testimony in Price are present here: no corroboration, no physical symptoms, no change in lifestyle, no treatment, no out-of-pocket losses related to the alleged emotional distress (in fact, no out-of-pocket losses at all).

. . .

The point of Price is that the causation that is required is that the constitutional violation must cause the damage, as distinct from the loss of government benefits incidental to the violation. "[C]ompensatory damages for emotional distress must be attributed to the actual constitutional violation, as opposed to the denial of the ultimate benefit, and must be proved by a sufficient quantum of proof demonstrating that the violation caused compensable injury." Price, 93 F.3d at 1246 (citing Carey v. Piphus, 435 U.S. 247 (1978)). "Carey . . . teaches that compensatory damages for emotional distress are available for a constitutional violation, but must be attributed to the invidious discrimination, not to the deprivation of an ultimate benefit, to recover more than nominal damages, actual injury must be caused by the constitutional violation must be proved by sufficient evidence." Id. The Price court observed its earlier decision in Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) (per curiam). "In remanding, we observed that in order to recover such damages, Burt must prove that her injury flowed from the denial of due process, not from termination of her teaching position, the denial of her ultimate benefit." Price, 93 F.3d at 1247.

Applying this discussion to the facts of Price, the Court observed "Appellees must establish that their injury is grounded in the denial of equal protection, not their lack of promotions." Id. at 1248. Similarly, the burden is on the plaintiff in this case to prove that his damages were caused by the constitutional right, and not the deprivation of the ultimate employment benefit.

. . .

Where the Court is convinced that a damages award is excessive, it may order a new trial, a new trial on damages, or a remittitur. Defendant has argued above, based on Price, that judgment as a matter of law should be entered. In the alternative, if the Court is of the view that some amount of emotional distress may be recoverable, nevertheless it should order a new trial or direct the remittitur of the award, on the basis of Price and Hetzel v. County of Prince William, 89 F.3d 169 (4th Cir. 1996).

In Hetzel, plaintiff claimed to be the victim of various forms of unlawful discrimination, although she was not discharged. The jury rejected all but one of her claims, yet awarded $750,000 for her emotional distress, which the District Court reduced to $500,000. 89 F.3d at 170. The appeals court reversed and remanded, concluding that the damage award was excessive as a matter of law.

As in this case, Hetzel relied exclusively on her own brief, conclusory statements to prove her emotional distress damages. She kept her job, never sought counseling, suffered no impairment of job performance, and presented no corroborating evidence. 89 F.3d at 171. "Hetzel’s thin evidence of rather limited damages would in-and-of itself entitle her to only a minimal award of damages." Id. The Court also observed the problem of causation, that most of Hetzel’s was caused by factors other than the claim on which the County was found liable. Id.

"That this award is outrageous is confirmed by even a cursory analysis of the impressive array of cases cited by appellee . . . . These cases, all of which contained a substantial award of $25,000 or more for intangible injuries such as emotional distress, involved plaintiffs that were either the victims of invidious discrimination, suffered serious — often permanent — physical injuries, or were discharged and had difficulty finding alternative employment." Id. at 172. "In stark contrast to these cases . . . Hetzel suffered no discrimination, was not physically injured, is not under a physician’s care, and remains an officer in good standing." Id.

. . .

In remanding the case, the Court suggested Bradley v. Carydale Enter., 730 F. Supp. 709 (E.D.Va. 1989) and McClam v. City of Norfolk Police Dept., 877 F. Supp. 277 (E.D.Va. 1995) as "comparable to what would be an appropriate award in this case." 89 F.3d at 173. The plaintiffs in Bradley and McClam were awarded emotional distress damages in the amounts of $9,000 and $15,000, respectively. Bradley, 730 F. Supp. at 726; McClam, 877 F. Supp. at 284. McClam cites Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir. 1989). In Cygnar, the Seventh Circuit approved remittitur from $55,000 to $15,000, in an employment case involving job transfers, which the Court distinguished from discharge cases. 865 F.2d at 848.

The few local decisions in analogous cases highlight the excessiveness of the verdict in this case. In Chester v. Wise County Electoral Board, Civil Action No. 95-0037-B, aff’d, 117 F.3d 1413, 1997 WL 381964 (4th Cir. 1997) (unpublished opinion), plaintiff was out of work for six months, but was awarded only $5,000 for his emotional distress. In Roberson v. Mullins, 876 F. Supp. 100 (W.D. Va. 1995), plaintiff was discharged; the Court awarded $10,000 for his emotional distress. In Bockes v. Fields, 798 F. Supp. 1219 (W.D. Va. 1992), aff’d in part and rev’d in part, 999 F.2d 788 (4th Cir. 1993), plaintiff was discharged without pre-termination due process but reinstated before trial; she was awarded $20,000.

Based on the analysis in Hetzel, the $85,000 in this case is clearly excessive. The Court should order a new trial. In the alternative, the Court should order a remittitur, with the condition that a new trial will be granted unless plaintiff accepts reduction in the verdict to an appropriate amount, which based on Hetzel could be no more than $15,000."

Penalty clause in commercial real estate contract declared invalid

In ACL Realty Corp. v. .Com Properties, LLC, Judge Conrad of the W.D. Va. declared invalid as a penalty a provision in a real estate contract, where the contract provided separately for liquidated damages and the amount of money to be paid under the contested provision was disproportionate to any actual damages.

I tried to argue something similar related to the late fees in an equipment lease, not too long ago, citing among other cases Abbs's Moving Service v. Wooldridge, 612 So. 2d 449, 452 (Ala. 1993) ("We have considered the argument that the late fee provisions of the lease should be declared a penalty and, therefore, void as against public policy. We conclude from a reading of the lease--which allows for a 5% charge for rent 5 days overdue and then an additional 5% charge for every 30 days thereafter that a portion of the rent is outstanding--that the lease imposes a penalty.")

Under Va. Code § 8.2A-108(1), a court can refuse to enforce an unconscionable term in an equipment lease.

Webb and Warner send five names to White House for Fourth Circuit

The Richmond paper reports here, the Roanoke paper reports here, and the Charlottesville paper reports here that Senators Warner and Webb have sent to President Bush the names of Justices Agee and Lemons, U.S. District Judge Conrad, lawyer Thomas Albro, and Richmond law professor John Douglass for nomination to the Fourth Circuit.

If those are the choices, I'm rooting for Judge Conrad, whom my Grandma Conrad claimed was somehow kin to us, and is from Southwest Virginia and lived for a while in Abingdon, and went to William & Mary Law, and clerked in the W.D. Va. before he became magistrate judge.

On being the best-read Virginia law blog

Guy Tower sent out his note to the VBA, saying this week that SW Virginia law blog is the best-read Virginia law blog, according to Justia.

My comments are these:

1. The rankings don't count Steve Emmert's site or the VLW blog, which really are the best.

2. Being the best-read Virginia law blog could be one of those distinctions like best sushi in Buchanan County - not much distance between best and worst.

Primary night

Geez, my friends Mickey McGlothlin and Rip Sullivan both lost - one by less than 600 on turnout of 14%, one by less than 300 on turnout of 6%.

What were the other 80-90% of the registered voters doing today?

Surgery this week

I'm in Richmond area this week, not just for the graduation, but also because my father-in-law is having an operation. He is a fun guy, and here is one of my favorite pictures of him with Dana.

On Justice Lacy's announcement

Years ago, I made my first of so far only two appearances before the Virginia Supreme Court, and took my wife along.

Afterwards, I asked her impressions, and one was that one of the justices wore really nice earrings.

Some time later, I told this story to Justice Lacy, whose earrings they were, and she laughed.

According to this VLW story, Justice Lacy will soon retire from the Court, and so it appears that she will not become Chief Justice in her time on the Court.

On James River graduation

Yesterday, I watched the nephew Andrew graduate with the 500+ members of the James River High School Class of 2007.

Governor Kaine was the main speaker. And, his remarks were very well done, he is an excellent speaker. He said the two things he remembered from his high school graduation in Kansas City were saying goodbye to his ex-girlfriend and watching one of the football guys hugging and carrying on with his parents. So, he said, if he could remember those two things after 35 years, he suggested the grads do likewise - clear the air with those you won't see again, and don't hold back on hugging your parents. He also said, be informed voters, not apathetic non-voters, noting that when Linwood Holton was elected in 1969, more than two-thirds of Virginia's registered voters participated, but when he was elected two years ago, the turnout was less than 50 percent. He said you need to vote because sometimes, every now and then, what elected officials do is important.

From last fall, here are the graduate and I.

But where's Old Zach?

Sic Semper makes a comeback, with a new line-up, including Norm Leahy.

Old Zach of the old SST came up to me at some event and said, "I'm Old Zach," which left me momentarily at a loss, in the sense that when Murphy Brown told Frank Fontana "the stick is blue," he could only reply "the dog barks at midnight."

On protesting in Rome

President Bush is in Rome this weekend, and there are protesters.

I took this picture in Rome in June of last year. There were just about as many guys there with machine guns as there were protesters, but I didn't think pointing my camera at them would be a good idea.

On preserving our culture

Bill Hobbs reports here on what happens when you order a BLT from someone from who doesn't know that the LT stands for "lechuga" and "tomate."

On the problem of older lawyers

The "Joint Committee on Aging Lawyers" of the National Organization of Bar Counsel and the Association of Professional Responsibility Lawyers has produced this somewhat pithy but interesting Final Report, which studies "the challenges raised by aging lawyers."

Judge Williams, now 87, sometimes retells a version of a story described here -

"One of the first of many standard stories recounted about the Supreme Court tells how his brethren went to an aging Justice Oliver Wendall Holmes to get him to step down and reminded the justice of similar entreaties he had made to Justice Stephen Field nearly a half century prior. Holmes is said to have responded to his younger colleagues that he had never himself done a dirtier days work."

Must have been a cat fancier

This TalkLeft post describes a Vermont case, in which the defendant was charged with making faces at a police dog.

Unrelated but equally bizarre is this Volokh post about a judge whose sentencing memorandum contains the titles of 40+ Beatles songs (in two pages).

Avvo, oh no

At Overlawyered, they say the new lawyer rating service Avvo is already the subject of threats of litigation by lawyers wanting better ratings.

I don't Avvo has got around to Virginia or Tennessee lawyers, yet, but if Homer Simpson gets arrested in Washington State, I'm sure he'll call this guy.

Here is an interesting CNET article, listing the Avvo ratings for Alberto Gonzalez, Harriet Miers, and others.

On Rick Klau

I read this Denise Howell post, which notes that blogger and software entrepreneur Rick Klau has joined up with Google.

Rick Klau is among other things a graduate of the law school at the University of Richmond, where he was among other things among the founding fathers of JOLT. At one time I heard that he started JOLT with the brother-in-law of my colleague Dawn Figueiras, but the facts have faded on me.

Well done, Rick.

Virginia Supreme Court rules against only woman on death row

In Lewis v. Warden, the Virginia Supreme Court denied the habeas corpus petition of Teresa Lewis, who is sentenced to be executed in connection with the murder of her husband.

In this story, it is stated that Ms. Lewis is the only woman on death row in Virginia, and one of the commenters says they told the victim she was only after his money, but he wouldn't listen.

Why not bring Jenna to the office

This ABA article profiles Virginia lawyer Mary Commander in a discussion of the benefits of owning one's own office building for solo practitioners. The article says for one thing, when you own the building, you can bring your pet to work.

Well, part of the lore of our firm is that the rulebook used to provide no pets allowed, which I always thought was the funniest thing - not what I would guess a small office would have at the top of the priority list.

Jenna has been to the office, but only on weekends, and not long enough to decide the place was worth marking against the claims of other dogs. I've seen some Bichons in there, it could be a competition.

On Boucher's broadband plan

This article describes Congressman Boucher's plan to address U.S. broadband problems.

It says in part:

"Despite having the largest number of residential broadband users in the world, many rural and poorer areas of the country don't have access to broadband.

The first law change that would help improve this, Boucher said, would be to reform the Universal Service Fund to promote the expansion of broadband service.

According to a bill backed by Boucher and Rep. Lee Terry, R-Neb., recipients of subsidies from the fund would have to agree to offer broadband service to their entire geographic service area within five years.

Currently the rules governing the fund, established to subsidize the rollout of telephone service across the country, don't permit companies to use it to expand broadband service.

. . .

Boucher said the next step would be to allow local governments to offer commercial broadband service, similar to when electricity service was first made widely available.

. . .

He also said he would be pushing federal lawmakers to adopt a similar program to one in Kentucky where through a combination of public and private funding a statewide broadband Internet network was constructed.

. . .

The fourth step necessary, said Boucher, would be to push broadband over power-line service. The technology exists to permit this, but so far no company has offered the service.

. . .

Finally, Boucher urged the audience of mainly telecommunications industry representatives to resolve the issue of network neutrality so it doesn't derail any more telecommunications legislation."

On judges and admen

Here is the test of an interesting speech by Justice Benjamin of the West Virginia Supreme Court on the subject of advertising in judicial campaigns.

On hiring Skadden Arps to advise on Virginia Tech

It says here that Governor Kaine has approved the hiring of Skadden Arps as outside counsel to the Virginia Tech investigators.

That seems like an odd choice, I would have thought their expertise was in securities, not security.

Charlottesville, great place for a road trip

Sports Illustrated has recognized Charlottesville as a great road trip destination for sports fans.

I've always thought so.

Justia's list of Virginia law blogs

Here is Justia's list of twelve Virginia blawgs.

Nonsense about Ledbetter

Somebody sent me this commentary in Time's website about the Supreme Court's ruling in the Ledbetter v. Goodyear case.

The gist of the commentary is how unfair it is that women have only 180 days to figure out that they are getting paid less.

First of all, the 180 days is 300 days, at least in Virginia, thanks to an oddball ruling from the Fourth Circuit some years ago.

And, on wages, the Equal Pay Act covers the problem of wage discrimination, and it has an even longer statute of limitations. The problem with trying to carve out a wage-specific rule for Title VII cases is that Title VII applies across the gamut of employment discrimination, and the same timeliness rule applies to all.

Third, these are statutory issues. If you don't like the outcome, blame the legislature. Congress can re-write Title VII, as it has done before.

How law school gets you down

This scientific study concludes that by the end of law school, students are fed up with the whole scene.

A study like that should have been funded by Domino's Pizza, or maybe the Green Leafe Cafe, which had their negative effects on some of the law students I knew.

Almost ready for the lemonade in Bluefield

In Bluefield, they serve lemonade when the temperature gets to 90 degrees, as it nearly did yesterday and might today. The Bluefield paper has this report on the weather in "Nature's Air-Conditioned City."

Hobbs wins

Lucas in our office argued for the winner in Stephens v. Com., one of the opinions released today by the Virginia Supreme Court.

Interesting personal jurisdiction ruling from Judge Sargent

In Boyd v. Green, Magistrate Judge Sargent recommended the dismissal for lack of personal jurisdiction of a tort claim against a Tennessee physician, but denied the same motion with respect to his employer.

And, so I wonder whether the plaintiff is now out of luck as to the doctor, since it may be too late to refile in Tennessee - unless some Tennessee tolling statute applies.

Well done, and thanks

Here's a Mom and Dad picture, on the occasion of their 45th anniversary. When they got married in June 1962, legend has it that they went on their honeymoon to Cherokee, North Carolina. This year, they went some place else.

Coming up - the Encyclopedia Virginia

This article from the Norfolk paper describes the work to compile an Encyclopedia Virginia.

Somehow, the derogatory comments towards Wikipedia leave a bad taste with me, but we'll see.

Mickey McGlothlin challenging Bowling for House of Delegates

The Bluefield paper has this article about the challenge brought by Grundy lawyer Mickey McGlothlin against Dan Bowling.

The article says in part:

"Two Democrats are vying for their party's nomination June 12 in a high-profile contest for the Third Legislative District House of Delegates seat.

Incumbent Delegate Dan Bowling, D-Tazewell, is being challenged by Michael G. “Mickey” McGlothlin in the Democratic Party primary. A Republican candidate hasn't been announced to date for the Third District contest, which includes Tazewell, Russell and Buchanan counties.

. . .

Bowling, who lives on a family farm near Tazewell, was first elected to the House of Delegates in a special election on Jan. 3, 2006. Bowling said he remains committed to job creation, regional cooperation, meeting the needs of law enforcement and emergency medical personnel, completing the Coalfields Expressway and pursuing a diversified economy for the legislative district.

. . .

McGlothlin, who was born in Richlands, currently resides in Buchanan County but also owns a farm in Tazewell County. He is the current county attorney for Buchanan County, and also previously served as the Commonwealth Attorney for Buchanan County. He is campaigning on a pledge of putting Southwest Virginia first, and is advocating the creation of high-quality jobs, fighting the war on drugs in Southwest Virginia, developing a plan for progress, completing the Coalfields Expressway, 'showcasing' the Third District, and helping with the restoration of historic Pocahontas.

. . .

Both candidates are hoping to expedite construction on the Coalfields Expressway in Southwest Virginia. The 51-mile four-lane corridor will extend through Buchanan, Dickenson and Wise counties before connecting with West Virginia. Virginia has partnered with two private coal companies that will help to develop the roadway bed by extricating coal.

. . .

Bowling, who has been endorsed for re-election by Gov. Timothy M. Kaine, welcomes the endorsement, and believes it is proper for the governor to make an endorsement in the Democratic primary.

'I think the governor has a right to endorse anyone he wants to,' Bowling said. 'Personally, I’ve been told I'm the only candidate in [t]he primary (elections) he's endorsed. I think he knows I'm a hard worker, and my heart is in Southwest Virginia. I do work closely with the governor, and I do have a very effective relationship with the governor.'

McGlothlin said he too if elected will have an effective working relationship with the governor.

'Even though the governor isn't supporting me, and even though I didn't support him in the last election, I’m very willing to work with him,' McGlothlin said. 'I have talked to him. I think he is the type of person that once an election is over is willing to looking at ideas and issues. I think if he would have looked at our backgrounds, I think I have a tremendous amount of experience. All people in Virginia want a better way of life. I think everyone who is in the Virginia Generally Assembly in their heart of hearts wants to make Virginia a better place. I'm willing to listen to anybody and talk these things out to try to arrive at a solution to the problems of Virginia and Southwest Virginia.'

Both candidates also are concerned about recent efforts to trim state government at the expense of Southwest Virginia, including proposed closures of Virginia Employment Commission offices as well as the recent — but ultimately rejected — plan to close Virginia Department of Transportation maintenance offices across Southwest Virginia.

. . .

Both candidates also are committed to winning the war against drugs in Southwest Virginia.

'Honestly, I think some of the legislation I’ve seen passed in West Virginia, I would like to take that to Virginia,' Bowling said of laws aimed at controlling methadone clinics in neighboring West Virginia. 'The methadone clinic down near Richlands that I drive past every day, I think it's just a filling station. The sad thing about the methadone clinics is if they are used properly, it would help some people break their addiction. But some people abuse it. They come back and back and back again.'

McGlothlin is actively campaigning on a goal of fighting the drug war in Southwest Virginia.

'We know we have a significant drug problem in our area,' McGlothlin said. 'We have to look at what we can do in our region to try to address our problems. We have a lot of parts of the state that have drug courts. We have a drug court in Tazewell County, but we don’t have one in Buchanan or Russell counties.'

McGlothlin said reaching the younger generation — which is at a greater risk of being trapped by drug and alcohol addiction — is critical.

. . .

Despite recent successes in diversifying the economy of Southwest Virginia, including the 700 plus technology jobs that are being created in Russell County by CGI and Northrop Grumman and the creation of the Appalachian School of Law and the University of Appalachia College of Pharmacy in Grundy, both candidates are committed to supporting future projects, including the proposed Bluestone technology park in Tazewell County.

Bowling said the key to bringing CGI and Northrop Grumman to Southwest Virginia was the creation of the 200-plus mile OC48 fiber-optic broadband backbone in Southwest Virginia. Bowling said he was a member of the Tazewell County Board of Supervisors when work began on the broadband project.

. . .

When it comes to diversifying the economy, and fighting for new high-paying jobs with good benefits, lawmakers representing Southwest Virginia must remain aggressive, McGlothlin said.

'You don’t stop,' McGlothlin said. 'You always have to have some project in front of you.'

In addition to the Bluestone project in Bluefield, McGlothlin sees great potential in the proposed Poplar Gap project in Buchanan County. McGlothlin said the University of Appalachian College of Pharmacy also is pursuing a lab expansion, and he hopes to see the development of another industrial park in Richlands."

Mr. McGlothlin is free to announce that I'm for him or against him, whichever will do him the most good.

Heading this way from Knoxville

Via No Silence Here, here is reason No. 2 to oppose those red-light cameras - they don't always work.

Circuit court opinions from Norfolk

Here are some online opinions from circuit court judges in Norfolk, I think, and many of them are incredibly interesting.

Among them is Com. v. Dickens, which declares the use of an accusatory affidavit authorized by Va. Code 18.2-472.1(D) violates the Confrontation Clause of the Sixth Amendment as construed by the Supreme Court in Crawford v. Washington.

Another is ODU v. Birkmeyer, dealing with the applicability of the McDonnell-Douglas proof scheme from Title VII to a state employee's grievance about racial discrimination.

Also there is another chapter in the Mattaponi Indian litigation over the King William Reservoir Project.

Oops, I laughed at this one

From this Buchman post:

Q. Have you talked to your lawyer about this deposition today?

A. Mr. Cox, shall I tell him?

Mr. Cox: Sure, go ahead and tell him.

A. Yes.

Q. And what did he tell you?

A. Mr. Cox, shall I tell him?

Mr. Cox: Sure, go ahead and tell him.

A. He told me there was some smart son of a bitch down here trying to make you lie, but you tell him the truth, anyhow.

Coming soon to a cable bill near you

Jurist has this post that says the D.C. Circuit agreed with the Federal Communications Commission that voice-over-IP service providers must pay into the Universal Service Fund.

More Certworthy

Here Ray Ward has posted the latest Certworthy, from the DRI appellate section.

The least consequential aspect of this must-read collection is that my position as the local correspondent continues.

On the passing of Judge Brown

The first time I appeared in court on a court-appointed criminal case, the judge was Judge David Brown. Judge Brown was a big man, with a booming voice, and powerful legal mind. He could have excelled on the bench at any level - district court, circuit court, appellate court.

He died this week at age 77, and here is part of his obituary from the Bristol paper:

"David Brown
ABINGDON – The Honorable David Daniel Brown, age 77, passed away Wednesday, May 30, 2007, at his home.

Mr. Brown was born in Meadowview to the late Hayter C. Brown Sr. and Mary Gladys Ritchie Brown. His sisters, Frances Brown Wohlford and Mary Louise Brown Baker; and his brothers, Hayter C. Brown Jr. and Charles Luther Brown, preceded him in death.
He is survived by his loving wife of 56 years, Nancy Blevins Brown of Abingdon; two daughters, Deborah Brown Harvey of Richmond and Sharon Brown Taylor and husband Joe of Glade Spring; and two sons, Charles David Brown and wife Petissa of Abingdon and Robert Daniel Brown and wife Sarah of Floyd, Va.; six grandchildren; three great-grandchildren; and several nieces and nephews also survive him.

Mr. Brown was a graduate of Meadowview High School and Emory & Henry College. He served in the U.S. Army during the Korean conflict and was a graduate of University of Virginia Law School in Charlottesville. From 1950 to 1951, and again from 1953 to 1954, Mr. Brown served as a teacher in the Washington County public school system. He was also a teacher in the Adult Bible Class at Meadowview United Methodist Church and in the Wesley Bible Class at Abingdon United Methodist Church.

As a leader in his community, he was chairman of the Cancer Crusade, president of the Abingdon Civitan Club, president of the Washington County Chapter of the Virginia Society of Crippled Children and Adults and member of the Holston Tuberculosis Association. He was elected commander of the Washington County Post No. 12 of the American Legion. As a member of the Democratic Party, he was president of the Washington County Young Democratic Club and served as state president of this organization in 1961.

Mr. Brown served as commonwealth's attorney of Washington County, Va., from 1964 to 1978. He was appointed general district court judge in 1982 and served until his retirement. While serving as counsel for the School Board, he was instrumental in establishing the magisterial districts named after Virginia presidents along with staggering the elections of county Board of Supervisor and county School Board members.

Funeral services for Mr. Brown will be held Sunday, June 3, 2007, at 4 p.m. at the Abingdon United Methodist Church, with the Rev. Walter Weikel officiating. Visitation will be from 2-4 p.m. at the church prior to the service. Entombment will follow at Knollkreg Memorial Park Mausoleum, with Pastor Jerry Eggers officiating. A Masonic service will be led by Abingdon Masonic Lodge No. 48, and military honors will be conducted by the Highlands Veterans Honor Guard.

Active pallbearers will be James Hay, Robert Duncan, Fred Wilson, the Honorable Charles Harrison Smith Jr., Emmitt Yeary, Tim Barker, Robert Cooper, G.C. Brown, Kenny Parker, Charles Elton and Reelia Watson. Honorary pallbearers will be members of the Abingdon United Methodist Church Wesley Bible Class, members of the American Legion, members of the Abingdon Masonic Lodge No. 48, the Honorable Joseph P. Johnson Jr.; the Honorable James P. Jones, the Honorable T.L. Hutton Jr. and Dr. Martin Monahan."

Making the rounds

I've seen in a few places references to the tale of the lawyer who told the judge in open court that he thought the judge was a few french fries short of a happy meal, or something like that.

Here is the Wikipedia entry for Happy Meal.

So, I might have been born at the tail end of the Baby Boom, but my ancient and venerable status is compelled by the fact that I never had a Happy Meal, since I was eating Big Macs by 1979 when the first Happy Meal was sold.

On the Loving case

Here Joanna Grossman begins an analysis of the Loving case, decided in June, forty years ago.

Here are some earlier posts on the case, in which the Supreme Court held Virginia's bad on inter-racial marriage to be unconstitutional, reversing the Virginia Supreme Court's opinion written by Justice Carrico.

Thursday, May 29, 2003
History of mixed-race marriage in the U.S.

This review of Race Mixing: Black-White Marriage in Postwar America by Renee Romano and Interracial Intimacies: Sex, Marriage, Identity, and Adoption by Randall Kennedy includes this passage regarding the litigants in the Loving v. Virginia case:

"But by 1967, when the Supreme Court struck down bans on interracial marriage in Loving v. Virginia, only sixteen states still had such laws. In Loving v. Virginia, a white man, Richard Loving, and his black wife, Mildred Jeter, were arrested in Virginia on the grounds that their marriage license from the District of Columbia was invalid and that they had violated the sinister-sounding Racial Integrity Act. They were given a choice of a one-year jail term or exile from Virginia for twenty-five years by the lower court judge, Leon Bazile, who declared: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.... The fact that he separated the races shows that he did not intend for the races to mix." (One wonders if conservative Virginia Christians noticed the judge's dismissal of the biblical story of the common origin of humanity in favor of the non-Christian Deist theory of "polygenesis.") In his majority opinion for the Supreme Court, Chief Justice Earl Warren ignored the Fourteenth Amendment and argued that the Virginia law violated the equal protection clause and fundamental privacy."

Saturday, June 28, 2003
The effects of the Texas sodomy case on Virginia law

n this post, I wrote:

Virginia likewise has criminalized sodomy, fornication, and lewd cohabitation. The most recent signs from the Virginia Supreme Court, oddly enough, are that some or all would uphold the constitutionality of these statutes. Justice Kinser cited them in her concurring opinion in the Arlington County "domestic partner" benefits case (in MS Word) from 2000. The majority cited the fornication and cohabitation statutes as the basis for the wrongful discharge claim in Mitchem v. Counts (in MS Word), also decided in 2000.

The viability of these criminal statutes is an element in a recurring issue in domestic relations cases, where one party may assert the constitutional privilege against self-incrimination to questions about sex acts other than with his or her spouse. The Virginia Court of Appeals' unpublished Goldmann case is one example of the self-incrimination issue.

Judge Merhige held that the fornication and cohabitation statutes were unconstitutional in Doe v. Duling, 603 F. Supp. 960 (E.D. Va. 1985), but this opinion was vacated on appeal for lack of standing, 782 F.2d 1202 (4th Cir. 1986), in an opinion by Judge Wilkinson. Roanoke gay rights lawyers also lost a constitutional challenge for lack of standing in the Virginia Court of Appeals, as reported in this 2000 opinion.

This one post has generated quite a number of hits from Googlers searching for the Virginia law of fornication.

On Thursday and Friday, the Daily Press reported here and here, the Roanoke Times reported here, the Richmond Times-Dispatch reported here, the Virginian-Pilot reported here, and Attorney General Jerry Kilgore conceded in this press release that the Lawrence case will have some effect on the laws of Virginia.

The likely result of the Lawrence case applied in Virginia is that the sodomy law is unconstitutional as applied to same-sex or opposite-sex scenarios, and the fornication and co-habitation statutes are probably also invalid. In fact, I would argue, the next time I see something like Mitchem (or Zysk v. Zysk), that the public policy of these statutes is trumped by the Constitution, and therefore the plaintiff has no claim or the defendant has no defense based on the illegality of fornication. (The Zysk case is the one where the Virginia Supreme Court held that a woman could not sue for contracting a loathsome social disease from her boyfriend because her injuries were the result of her illegal conduct in having sex with him.)

Tim Sandefur has this interesting post comparing the Lawrence decision with the Loving case, which struck down Virginia's ban on interracial marriage.

Tuesday, April 12, 2005
Justice Carrico and deference to the legislature

As I have recently read Virginia Hasn't Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Mildred Loving, it gave me occasion to read the Virginia Supreme Court opinion in the Loving case, written by Justice Carrico.

In that opinion, Justice Carrico applied the Court's earlier opinion in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749 (1955), and refused to recognize that the U.S. Supreme Court's intervening decision in McLaughlin v. State of Florida, 379 U.S. 184 (1964), justified a different course. Loving v. Com., 206 Va. 924, 147 S.E.2d 78 (1966). Rejecting the policy arguments of the appellants, Justice Carrico wrote:

"A decision by this court reversing the Naim case upon consideration of the opinions of such text writers would be judicial legislation in the rawest sense of that term. Such arguments are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate."

Justice Carrico joined in the dissent in the case of Lockhart v. Commonwealth Educ. Systems Corp., 247 Va. 98, 439 S.E.2d 328 (1998). In his dissent, Justice Compton explained that the majority had bypassed the statutory prohibition in then-Va. Code 2.1-725 against new causes of action based on the public policy of the Virginia Human Rights Act.

I compare these opinions with the analysis of the Court in Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005). Although not cited in Martin, the Court had recently applied the fornication statutes, in Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (2000), where the Court found that those statutes provided independent basis in public policy for the plaintiff's wrongful discharge claim, thereby avoiding the limitations of the amended section 2.1-725. In Mitchem, again with Justice Carrico joining in the dissent, the Court characterized the fornication statutes as among the "[l]aws that do not expressly state a public policy, but were enacted to protect the property rights, personal freedoms, health, safety, or welfare of the general public," on which a wrongful discharge claim could be based. After the intervening decision by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), however, the same Court was willing in Martin to conclude that the fornication statute was irrational, and therefore unconstitutional. I suspect that Justice Carrico would have dissented in Martin, as well.

Sunday, January 15, 2006
On Philip Hirschkop

Law.com has this wild profile of Virginia lawyer Philip Hirschkop, retiring at age 69, and most famous for his role in the Loving case.

The article says in part:

"In one six-year span, 17 disciplinary complaints were brought against him at the Virginia State Bar -- a distinction Hirschkop bears proudly. The complaints, he says, were 'never for screwing a client -- only for making public statements' about pending litigation."

The article also says:

"He also donned a 10-gallon hat and cowboy boots to win the acquittal of Texas oil magnates Nelson Bunker Hunt and W. Herbert Hunt in a federal wiretapping case.

The decision to represent the archconservative oilmen was a tough one for Hirschkop, says John Kenneth Zwerling, an Alexandria lawyer whose wedding Hirschkop had officiated at while wearing a coonskin cap. 'The [Hunt brothers] bought him a membership in the John Birch Society,' he says. 'And he bought them a membership in the ACLU.'

The Hunt brothers and other famous clients helped provide Hirschkop with the kind of money a radical lawyer could only dream of, especially 30 years ago. In his best years, Hirschkop says, he's earned well above $1 million."

Saturday, October 07, 2006
The California appeals court decision rejecting same-sex marriage

Here is the Marriage Cases decision from the intermediate appeals court in California.

The dissent quotes heavily from Justice Carrico's opinion in the Loving case, making the point that the majority's reliance on history is no more valid than what Justice Carrico wrote, which was overturned by the U.S. Supreme Court.

Worth reading is the concurring opinion, which says in part:

"I also write separately to identify a major difficulty with all attempts at reasoned dialogue about this subject. There is a legitimate and meaningful disagreement in this country, and in many places around the world today, about what marriage is and should be. Over the last 30 years we have seen a gradual reconfiguration of family; merging models of family exist alongside traditional models. We have also witnessed an expansion of personal freedom to express who one really is that is desirable if each person is to become who he or she was created to be. The roots of the disagreement over what marriage should be necessarily intertwine cultural, societal, and religious ideas. There is a great tendency, out of zeal to eliminate genuine inequities, to be swayed emotionally and to overreach in applying legal principles. My colleague has done so in his dissent. Justice Kline writes passionately of the “profound nature of the liberty interest” at stake (dis. opn., post at p. 47) and of “autonomy privacy,” (dis. opn., post at pp. 9, 22) but does not cite a single case where the asserted liberty or privacy interest has been identified as he would have us recognize. Most of the cases he relies upon are cases where the rights at issue have been discussed in the context of marriage as it has been understood historically, or in situations that criminalize acts of sexual intimacy. In the end the dissent advocates, from cases that do not lead inexorably to such a result, the existence of a fundamental right to participate in an institution that as historically defined excludes such individuals."

On nominations

Here is an article on reactions to President Bush's latest nominee to a district court judgeship in West Virginia - William Powell.

This commentary applauds Senators Warner and Webb for working together on naming candidates for the Fourth Circuit, while this post despairs of the non-cooperations between the White House and Senator Graham on picking a candidate for the Fourth Circuit.

On the passing of Roanoke lawyer Sam Garrison

Here the Roanoke paper describes the rollercoaster-like life and times of Roanoke lawyer Sam Garrison, who died a few days ago.

Oh, that sounds worthwhile

Here is an interesting snippet:

"Congressional junkets and greenhouse gases

Memorial Day weekend is over for the rest of us, but 'Memorial Day recess' continues for members of Congress, who aren't subject to the usual rules. And what are some members doing during the break? 'Reps. Rick Boucher, D-Va., Dennis Hastert, R-Ill., and four other members of the House Energy and Air Quality Subcommittee will travel for a week to Copenhagen, Berlin, Brussels and London,' according to one published report. The purpose of the 'fact finding mission'? To get a first-hand look at how these countries are reducing greenhouse gases, congressional aides have explained (apparently with a straight face).

How much would greenhouse gases be reduced, we wonder, if we could put a stop to congressional junkets?"

Judge Urbanski recommends a trial in the Thor's Hammer case

Citing Wikipedia once again in dealing with Edda, Magistrate Judge Urbanski recommended in this opinion that the W.D. Va. should deny summary judgment in the civil rights case brought by an inmate who claims that his request to have a 'Thor's Hammer' pendant in prison was unlawfully denied.

On judicial selection and judicial candidate questionnaires

From Idaho, this opinion piece expresses the view that the people can be trusted to elect good judges and those would be judges should have to answer questions about their views on issues of interest to the voters.

The author says in part:

"Imagine league officials interviewing a prospective umpire. 'Will you faithfully enforce the rules of baseball?' 'Of course.' 'What about the 'three strikes and you're out' rule?' 'Well, I can't comment on that because I might actually have to call a game someday.' It's no less ridiculous when a prospective judge says he will uphold the whole constitution, but refuses to commit to upholding its parts. But in the judge's case, the stakes are far higher."

On the cruise ship that sank off Santorini

Here is the story of a Virginia lawyer and his wife who were on the cruise ship that struck the rocks and sank at Santorini in the Greek Isles, a couple of weeks before we went on a similar cruise.

From the water, Santorini looks like a big rock, surrounded by water and a few other big rocks.

On swearing in court

The Charlotte paper weighs in here that a NC state court trial judge got it right when he ruled that witnesses of the Islamic faith could take their courtroom oaths on the Koran instead of the Bible.

Chief Judge Faber, on giving up being Chief Judge in the S.D. W.Va.

Chief Judge Faber is giving up being Chief Judge, to allow Judge Goodwin a chance to be chief judge for a while, according to this post, which I like mainly because of this quote:

"I'm fond of quoting the Mark Twain story about a man who led out of town on a rail," Faber said of the extra work involved in being chief judge. "If it weren't for the honor of the thing, I'd prefer to walk."

Why would Congressman Boucher be working on car rental excise taxes?

I was surprised to see Congressman Boucher is heading up the gang behind a new federal statute that would preempt state excise taxes on car rentals.

The article says: "Introduced yesterday by U.S. Representatives Rick Boucher (D-Virginia) and Chris Cannon (R-Utah), H.R. 2453 would prohibit future state or local discriminatory excise taxes on car rental consumers."

How many cars are rented in the Ninth District? None?

This sounds like the car rental business has learned a lobbying lesson on how to make an end run around local legislation they don't like - go to the statehouse, and if that doesn't work, go to Washington, D.C.

Historic service station in Charlottesville

It says here in the Hook that the Fry's Spring service station is being designated as a historic landmark.

Why not? Here is the application to the feds describing what makes this an interesting place. And, what I like about it, having entered Charlotteville from the west so many times, is that when you can see that building, you've made it once more - if the car breaks down, you can walk the rest of the way. (In the old days, that was more of an issue.)

Attorneys' fee petition denied for jailer acquitted of federal perjury charge

In Hicks v. U.S. Attorneys Office, Chief Judge Jones of the W.D. Va. denied the petitioner's claim for attorneys' fees under the Hyde Amendment, concluding that notwithstanding the petitioner's acquittal on the perjury and obstruction of justice charges brought against him related to his testimony in a civil case, the charges were not "vexatious, frivolous, or brought in bad faith."

In the civil case of Stiltner v. Crouse, Judge Jones granted summary judgment for the defendants, including Hicks, in connection with the wrongful death case brought in connection with the death of a woman who had held in custody at the jail in Buchanan County.

State court ruling on grievability precludes procedural due process claim

In Etters v. Spencer, Chief Judge Jones of the W.D. Va. dismissed in part the section 1983 claim of a former employee of Tazewell County, who claims that he has been deprived of liberty and property without due process.

The Court ruled that the plaintiff was bound by the determination in state court that the plaintiff had no grievance because he was a department head, excluded by the county government from application of the policy, and therefore he had no basis for his procedural due process claim (having received all the process he was due, which was none).

Oops, no joy on this one

In Casteel v. Davidson, the Fourth Circuit in a per curiam decision by the panel including Judges Michael, Traxler, and Duncan, affirmed summarily the opinion of the District Court, without hearing oral argument.

Since we were the ones hired to bring the appeal, I was hoping for a different outcome.

Local litigators Roy Jessee and Bill Moffet were up in Richmond earlier this week, arguing before a panel of Judge Motz, Judge Shedd, and Senior Judge Hamilton. I must remember to inquire about that when next I see those gentlemen.

Latest qualified immunity opinion from Supreme Court

Yesterday, in Los Angeles County v. Rettele, the Supreme Court reversed the denial of qualified immunity by the Ninth Circuit to law enforcement officers sued for unreasonableness in the conduct of a search where they were looking for African-Americans in a house where everyone there was Caucasian.

The Court concluded there was no constitutional violation.

In a concurring opinion, Justice Stevens suggested three items of interest: (1) he bashed the Ninth Circuit for deciding the case in an unpublished opinion, and (2) he thought it was obvious that the rights at issue were not clearly established, not even on the authorities the Ninth Circuit cited, and (3) he continues to object to the idea that qualified immunity should be decided by always going first to the merits question.

On the latter point, I think that some opponents of qualified immunity would disagree, that the law never gets clearly established unless somebody rules on the merits every now and then.

A collection of Jerry Falwell posts

Saturday, January 07, 2006
The Falwell forecast on Alito

In this story from the Lynchburg paper, the Reverend Jerry Falwell predicts that the number of votes in the U.S. Senate in favor of the nomination of Judge Samuel Alito to the U.S. Supreme Court will be "in the high 50s or low 60s."

Monday, November 21, 2005
Jerry Falwell hoping for Protestant Knute Rockne

Explaining why he fired the football coach at Liberty University, Jerry Falwell here: "I don't have much time to get the football program in the Top 20."

Sunday, August 28, 2005
Falwell's sterling character denies him relief once again in the federal courts

Years ago, in the libel case brought by the Rev. Jerry Falwell against Larry Flynt over an ad parody in Hustler magazine, the jury found for the defendant, finding that "no reasonable man would believe that the parody was describing actual facts about Falwell." Falwell v. Flynt, 797 F.2d 1270, 1273 (4th Cir. 1986). The U.S. Supreme Court relied in part on this finding to overturn the verdict in favor of Falwell on his claim of intentional infliction of emotional distress. See Hustler Magazine v. Falwell, 485 U.S. 46, 56 (1988) ("We conclude that public figures and public officials may not recover for the tort of intentional infliction of emotional distress by reason of publications such as the one here at issue without showing in addition that the publication contains a false statement of fact which was made with 'actual malice,' i.e., with knowledge that the statement was false or with reckless disregard as to whether or not it was true.")

Last week, in Lamparello v. Falwell, the Fourth Circuit in an opinion by Judge Motz, joined by Judges Michael and King, reversed the district court's entry of an injunction prohibiting the defendant from maintaining a "gripe website critical of Reverend Jerry Falwell." The Court concluded that there was no likelihood of confusion between Falwell's trade names and the defendant's "gripe website." The Court said: "After even a quick glance at the content of the website at www.fallwell.com, no one seeking Reverend Falwell’s guidance would be misled by the domain name — www.fallwell.com — into believing Reverend Falwell authorized the content of that website. No one would believe that Reverend Falwell sponsored a site criticizing himself, his positions, and his interpretations of the Bible."

So, I conclude from these two cases, under these cases based on the First Amendment, Rev. Falwell's protection from those who would say transparently bogus things about him is that no one would believe them, and he can obtain a judicial remedy against only those commentators with expression that has some verisimilitude (but is not quite true, as truth, presumably, might also defeat some kinds of claims).

Here are reports on the opinion from Anne Broache of CNET news.com, Eric Goldman, Paul Alan Levy, the AP, Brian Peterson, SC Appellate blog, Susan Crawford, and Warwick Rothnie, among the many to comment on this case which involves the intersection of intellectual property law with the underlying clash of views between Mr. Lamporello and Rev. Falwell over homosexuality - there's something in it for all variety of different blogs.

Tuesday, July 19, 2005
Might as well, since the law and politics thing did not work out

In this story about a Eastern Kentucky politician who was sentenced today in federal court, where the defendant explained what he has been doing lately while he waited for his case to get finished: "With his law license suspended, Hays said, he has been attending Liberty University Baptist Theological Seminary, run by Jerry Falwell in Virginia."

Friday, July 15, 2005
Falwell says he's not recommending anyone for the Supreme Court

How Appealing links here to this article from the Lynchburg paper in which the Rev. Jerry Falwell says he's not making any recommendations to the White House about who should be named to the Supreme Court.

Tuesday, May 31, 2005
Two more summaries on the candidates for the Republican nomination for AG

This article by Christina Nuckols for the Norfolk paper about Steve Baril and Bob McDonnell is sort of a fair summary of the main points that have come across in the media during the campaign.

It does not mention some other things, like tort reform or where their money comes from, that might be of interest to some voters. This article by Tammie Smith in today's Richmond paper fills in some of that gap.

In this post, Barnie Day says that "Main Street Republicans" like Baril because, well, he is a Main Street lawyer, which I always thought was the main part of his appeal, although his campaign has not made it a point of emphasis in any way that I have noticed, preferring more populist themes. Strangely, Day points out that McDonnell is tied to Pat Robertson, without mentioning that Jerry Falwell was an early supporter of Baril.

Saturday, April 30, 2005
Rev. Falwell double-dog dares Sen. Warner to defy him on filibuster vote

Via How Appealing, I see that the Lynchburg paper is reporting here ("Falwell lays down marker for Warner," 4/30/05) that SW Virginia's own Rev. Jerry Falwell is challenging Sen. John Warner to come across on the vote to limit filibusters on the President's judicial nominees.

Senator Warner, I suspect, is not going to run again and will do whatever he pleases.

Wednesday, November 24, 2004
Look, bloggers made Jerry Falwell's Thanksgiving prayer list

It says here that among other things for which Jerry Falwell is offering a prayer of Thanksgiving: "I thank God for the Internet bloggers."

Monday, September 27, 2004
Falwell gives law clinic for church leaders on how to politic from pulpit

The AP reports here that Jerry Falwell and his lawyer son and others gave a how-to session for ministers on where to draw the line when mixing religion and politics.

Friday, September 03, 2004
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.

Wednesday, September 01, 2004
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.

Wednesday, August 25, 2004
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.

Thursday, August 19, 2004
Virginia Democrats on the new Jerry Falwell law school

From the Virginia Democrats' blog, this post laments the opening of the new law school at Liberty as likely to result in the further breakdown of the separation of Church and State.

Now, to me, there's something wrong in singling out for criticism the Southern Baptists and other Christians, when they engage in the naked pursuit (so to speak) of their agenda, as they are surely entitled to do, as much as anyone else. The Southern Baptists are not a threat to Our American Way of Life - anyone who has ever been to a Sunday School picnic knows that.

Wednesday, August 18, 2004
Opening of the Liberty University School of Law

Jurist has this post with links about the opening next week of the new law school at Jerry Falwell's Liberty University in Lynchburg, including this AP report and the Dean's blog.

Wednesday, August 11, 2004
More on the Falwell case

Here from Slashdot is a string of comments on the "Jerry Falwell" trademark beats fallwell.com case.

Tuesday, August 10, 2004
Website of gay rights activist held to infringe on the IP of Jerry Falwell

The AP reports here that Judge Hilton of the E.D. Va. has ruled that the domain name "fallwell.com" was too close to the registered trademark "Jerry Falwell" and was likely to confuse web surfers.

Tuesday, December 16, 2003
Best law school in Michigan

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

Monday, December 01, 2003
Jerry Falwell endorses Steve Baril for Virginia AG in 2005

According to this report ("Baril picks up endorsement from Falwell," 11/29) from the Richmond paper, the minister of the Thomas Road Baptist Church in Lynchburg, Jerry Falwell, has endorsed Steve Baril for Attorney General. Baril is a partner in the Williams Mullen firm and the son-in-law of the late former Governor John Dalton.

Saturday, June 21, 2003
Jerry Falwell's explanation of how he got back jerryfalwell.com

Jerry Falwell, the Baptist minister from Lynchburg, explains here the legal strategies he employed in an effort to wrest from one of his opponents the use of "jerryfalwell.com."

Thursday, June 19, 2003
SW VA's own Jerry Falwell gets rights to jerryfalwell.com without litigation

This press release describes how Jerry Falwell, the Baptist minister from Lynchburg, got the rights to jerryfalwell.com, without litigation.

JIRC recommends discipline against Judge Shull

The VLW blog had this post about the findings of the Judicial Inquiry and Review Commission on Judge Mickey Shull.

This is very disappointing, as I like Judge Shull. I don't know what happens next, or who might get the job if Judge Shull if these findings are upheld.

Another good book

I just read Gary Giddins' collection of favorites from his career as a movie/music/book critic, in Natural Selection: Gary Giddins on Comedy, Film, Music, and Books.

I didn't know half of what he was talking about, but the writing is great. The book sort of makes me think I've been wasting my DVD player. In fact, it ought to come with a few DVDs of the movies and music.

In particular, I liked the pieces toward about his professor from Grinnell and his editor at the Village Voice.

Been there

On the cover of the latest Travel + Leisure magazine is a view of The Reefs - where we spent our honeymoon, back in the day. The Reefs is also on the cover of T+L's 2007 hotel book.

At one time, some of its owners were engaged in a long-run bit of litigation, which is a bit hard to follow. See Koehler v. The Bank of Bermuda, Ltd. No. M18-302, 1994 WL 48825 (S.D.N.Y. Feb. 16, 1994) ("Koehler I"); Koehler v. The Bank of Bermuda, Ltd., 101 F.3d 863 (2d Cir. 1996) ("Koehler II"); Koehler v. Bank of Bermuda (New York) Ltd., 96 Civ. 7885, 1998 WL 557595 (S.D.N.Y. Sept. 2, 1998) ("Koehler III"); Koehler v. Dodwell, 152 F.3d 304 (4th Cir. 1998) ("Koehler IV"); Koehler v. The Bank of Bermuda (New York) Ltd., 209 F.3d 130 (2d Cir. 2000) ("Koehler V"); Koehler v. The Bank of Bermuda, Ltd., No. M18-302, 2002 WL 519740 (S.D.N.Y. Apr. 5, 2002) ("Koehler VI"); and Koehler v. The Bank of Bermuda, Ltd., No. M18-302, 2002 WL 1766444 (S.D.N.Y. July 31, 2002) ("Koehler VII").

The year before I got married, I lived at Mom and Dad's house, working for Judge Williams. People sometimes asked what did I do with all the money, having a salary for the first time and no expenses. And, the answer is I bought a wedding ring, made (only part of) a down payment on a house, paid for a week at The Reefs, and must have squandered the rest.

Will the Roanoke Times start liking him now?

Via Waldo, I saw this report that says at one time the Justice Department was looking at giving John Brownlee the boot for not prosecuting the pork rinds and cigarettes voter fraud cases that were later concluded in state court by Tim McAfee.

So, if Karl Rove was against him, you'd think the Roanoke paper would be for him.

UPDATE: Instead, the Roanoke paper wrote, huh?

Chief Judge Jones upholds federal sex offender registry statute

Last week, in U.S. v. Hinen, Chief Judge Jones of the W.D. Va. overruled the constitutional challenge raised by the defendant to the validity of his federal prosecution for failure to register as a sex offender.

Judge Jones offered this background of the statute at issue:

"Title I of the Adam Walsh Child Protection and Safety Act of 2006 ('Adam Walsh Act') encompasses the Sex Offender Registration and Notification Act (“SORNA”), Pub. L. 109-248, §§ 1-155, 120 Stat. 587, 590-611 (2006). The Adam Walsh Act, including SORNA, was approved by the President on July 27, 2006. SORNA created a new federal offense of failing to register as a sex offender ('FFR'), with a maximum penalty of ten years imprisonment. See 18 U.S.C.A. § 2250.2 The elements of the crime as applicable to the present case are that the defendant (1) was required to register under SORNA; (2) traveled in interstate commerce; and (3) knowingly failing to register or update a registration as required by SORNA. Id. at § 2250(a). SORNA requires a person convicted of a sex offense to register, and keep the registration current, in each jurisdiction where the offender resides. 42 U.S.C.A. § 16913 (West Supp. 2007)."

The Washington Post looks at the candidates for the E.D. Va. vacancies

In this article by Jerry Markon, the Washington Post looks at the seven names sent to the White House for the two vacancies on the United States District Court for the Eastern District of Virginia.

The article has a picture of Judge Jeri Somers, who is on the U.S. Civil Board of Contract Appeals.

Just back from EMLF institute

I went on Monday and Tuesday to the Energy and Mineral Law Foundation's conference in Charleston.

The highlights, in my view, were these:

1. The discussion of the Tawney case, the multi-million dollar gas royalty case, with comments from Thomas Lane and Tim Miller. (The earlier appellate decision from Tawney can be read here.)

2. The deed room talk from Davin Seamon, which I thought was delightful.

3. John Woodrum's retelling of the history of the Coal Act.

Law office seen at the beach in South Carolina

Talk about perpetuating stereotypes -

Magistrate Judge Sargent recommends denial of motion for leave to amend based on company's own e-mail

In The United Co. v. Keenan, Magistrate Judge Sargent recommended denial of the former employer's motion for leave to amend, based on an e-mail written using the company's e-mail system by the defendant former employee. Magistrate Judge Sargent thought the plaintiff should have discovered an e-mail on its own system years ago.

Magistrate Judge Sargent denies motion for summary judgment in handicapped-access lawsuit against Barter Theater

In Morrell v. Barter Foundation, Magistrate Judge Sargent recommended denial of the defendant's motions in the case challenging handicapped access to the various facilities across the street from the main theater on the Barter Green. The Barter argued, among other things, that they are trying to fix the problem, which is not a valid defense, or so Judge Sargent concluded: "Because the Barter has only plans to cease this alleged violation of the ADA, and given the rigorous procedures that must be followed under the Program, and which failure to follow could result in losing the VDOT grant, it certainly cannot be said that there is no reasonable expectation that the alleged violation will recur, for the violation will certainly continue to occur until the completion of construction of an ADA-compliant sidewalk."

Fourth Circuit reversed dismissal of Fair Debt Collection Practices Act claim against lawyers

In Sayyed v. Wolpoff & Abramson, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Chief Judge Wilkins and Judge Motz, reversed the order of the district court granting the defendant law firm's motion to dismiss the plaintiff's claims brought under the Fair Debt Collection Practices Act. The Court ruled that the District Court erred in applying common law immunities as a defense to the federal act, holding that instead the Act defines what are the violations and defenses to liability.

The Court concluded:

"Ultimately, W&A's specific arguments are manifestations of the same general claim: that it simply cannot be the case that the FDCPA covers litigation, the entire purpose of which is to arrive at the truth through the clash of the adversarial process. This argument may have some intuitive appeal, but the fact that an interpretation may seem appealing does not mean that it is correct. While the district court stated, 'I cannot see how commercial litigation could proceed' if the statements at issue in this case were subject to the FDCPA, the FDCPA does not apply to commercial litigation: it covers debt collection where 'debt' is defined as an obligation of a 'consumer,' defined as a 'natural person,' for 'personal, family, or household purposes.' 15 U.S.C. § 1692a(3), (5). And, in any event, '[i]n the ordinary case, absent any indication that doing so would frustrate Congress's clear intention or yield patent absurdity, our obligation is to apply the statute as Congress wrote it.' Hubbard v. United States, 514 U.S. 695, 703 (1995) (internal quotation marks omitted). Operating from 'the understanding that Congress says in a statute what it means and means in a statute what it says there,' Hartford Underwriters Ins. Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000), we reverse the district court’s dismissal of the action."

Magistrate Judge Urbanski whacks attorneys' fees in interpleader case

In Sun Life Assurance Co. v. Tinsley, an interpleader case where the "boot" was $30,877.40, Magistrate Judge Urbanski cut the plaintiff insurance company's request for $11,000 in attorneys' fees down to $2,000.

Closing in on a Fourth Circuit nominee from South Carolina

South Carolina Appellate Law Blog says here that the nominee to fill the vacant seat on the Fourth Circuit left by Chief Judge Wilkins "will likely be either Steve Matthews of Haynsworth Sinkler Boyd, or Judge John Kittredge of the South Carolina Court of Appeals."

The gang at Confirm Them have posted their comments here.

Besides Chief Judge Wilkins, the Fourth Circuit needs replacements for Judge Widener, retired Judge Luttig, the late Judge Murnaghan, and senior Judge Phillips from North Carolina (who took senior status in 1994!). Judge Duncan is still the only member of the Court from North Carolina.

New notarization requirements in Virginia

Virginia Lawyers Weekly has a cover story this week about the new Virginia law with some odd new requirements on how to notarize documents. The new law was HB 2058, includes these provisions:

§ 47.1-11.1. Evidence of authenticity of electronic notarial act.

A. Form of evidence of authority of electronic notarial act. On a notarized electronic document transmitted to another state or country outside of the United States, electronic evidence of the authenticity of the official signature and seal of an electronic notary of the Commonwealth of Virginia, if required, shall be attached to or logically associated with the document and shall be in the form of an electronic certificate of authority signed by the Secretary that is independently verifiable, will be invalidated if the underlying document is improperly modified, and is in conformance with any current and pertinent international treaties, agreements, and conventions subscribed to by the government of the United States.

B. Certificate of authority for electronic notarial act. An electronic certificate of authority evidencing the authenticity of the official signature and seal of an electronic notary of the Commonwealth of Virginia shall contain substantially the following words:

Certificate of Authority for an Electronic Notarial Act

I, ___________(name and title), certify that __________(name of electronic notary), the person named as Electronic Notary Public in the attached or associated electronic document, was commissioned as an Electronic Notary Public for the Commonwealth of Virginia and authorized to act as such at the time of the document's electronic notarization.

To verify this Certificate of Authority for an Electronic Notarial Act, I have included herewith my electronic signature this______day of _______, 20__.

(Electronic signature and seal of commissioning official)

C. For issuing an electronic certificate of authority, the Secretary may charge a fee in an amount set by the Secretary.

§ 47.1-14. Duty of care.

A. A notary shall exercise reasonable care in the performance of his duties generally. He shall exercise a high degree of care in ascertaining the identity of any person whose identity is the subject of a notarial act.

B. Unless such person is personally known by the notary, identity shall be ascertained upon presentation of satisfactory evidence of identity as defined in this title.

C. A notary performing electronic notarial acts shall keep, maintain, protect, and provide for lawful inspection an electronic record of notarial acts that contains at least the following for each notarial act performed: (i) the date and time of day of the notarial act; (ii) the type of notarial act; (iii) the type, title, or a description of the document or proceeding; (iv) the printed name and address of each principal; (v) the evidence of identity of each principal in the form of either a statement that the person is personally known to the notary, a notation of the type of identification document, which may be a copy of the driver's license or other photographic image of the individual's face, or the printed name and address of each credible witness swearing or affirming to the person's identity, and, for credible witnesses who are not personally known to the notary or electronic notary, a description of the type of identification documents relied on by the notary; and (vi) the fee, if any, charged for the notarial act. The electronic notary shall take reasonable steps to (i) ensure the integrity, security, and authenticity of electronic notarizations, (ii) maintain a backup for his electronic record of notarial acts, and (iii) ensure protection of such backup records from unauthorized use.

D. A notary performing electronic notarial acts shall take reasonable steps to ensure that any registered device used to create an electronic signature is current and has not been revoked or terminated by its issuing or registering authority.

E. A notary performing electronic notarial acts shall keep his record, electronic signature, and physical and electronic seals secure under his exclusive control and shall not allow them to be used by any other notary or any other person.

F. A notary performing electronic notarial acts shall use the notary's electronic signature only for the purpose of performing electronic notarial acts.

G. A notary performing electronic notarial acts, immediately upon discovering that the notary's record, electronic signature, or physical or electronic seal has been lost, stolen, or may be otherwise used by a person other than the notary, shall (i) inform the appropriate law-enforcement agency in the case of theft or vandalism and (ii) notify the Secretary in writing and signed in the official name in which he was commissioned.

§ 47.1-15. Prohibitions.

A notary shall not:

1. Notarize a document if the signer is not in the presence of the notary at the time of notarization, unless otherwise authorized by law to do so.

2. Use the official notary title or seal to endorse, promote, denounce, or oppose any product, service, contest, candidate, or other offering.

3. Notarize a signature on a document without notarial certificate wording on the same page as the signature.

4. Affix an official signature or seal on a notarial certificate that is incomplete.

A notary shall not perform any official act with the intent to deceive or defraud.

A nonattorney notary shall not assist another person in drafting, completing, selecting, or understanding a document or transaction requiring a notarial act. This section does not preclude a notary who is duly qualified, trained, or experienced in a particular industry or professional field from selecting, drafting, completing, or advising on a document or certificate related to a matter within that industry or field or prevent a notary from adding a notarial certificate or electronic notarial certificate to a paper or electronic document at the direction of a principal or lawful authority.

A notary may decline to notarize a document.

§ 47.1-16. Notarizations to show date of act, official signature and seal, etc.

A. Every notarization shall include the date upon which the notarial act was performed, and the county or city and state in which it was performed.

B. A notarial act shall be evidenced by a notarial certificate or electronic notarial certificate signed by a notary in a manner that attributes such signature to the notary public identified on the commission.

C. Upon every writing which is the subject of a notarial act, the notary shall, after his certificate, state the date of the expiration of his commission in substantially the following form:

"My commission expires the . . . . day of . . . . . ., . . . .."

Near the notary's official signature on the notarial certificate of a paper document, the notary shall affix a sharp, legible, permanent, and photographically reproducible image of the official seal, or, to an electronic document, the notary shall attach an official electronic seal. However, in the case of a nonelectronic seal, failure to affix an official seal shall not in any way impact the legality or efficacy of the paper document.

D. The notary shall attach the official electronic signature and seal to the electronic notarial certificate of an electronic document in a manner that is capable of independent verification and renders any subsequent changes or modifications to the electronic document evident.

E. A notary's electronic signature and seal shall conform to generally accepted standards for secure electronic notarization.

Brian Peterson over in West Virginia also has this post.

Interesting books I read lately

Two interesting and provocative history books -

One was On the Shoulders of Giants: My Journey Through the Harlem Renaissance, by Kareem Abdul-Jabbar. Probably, I would not have read it but for the famous author.

Another was A Land As God Made It: Jamestown And the Birth of America, by James P. P. Horn. Probably, I would not have read it but for the 400th celebration.

The Horn book makes me think that this goofy story in the Post is somewhat right but leaves out some of the interesting parts, on the story of Pocahontas and John Smith. Evidently, the big deal about Pocahontas at the time was that when she came to England, she became a celebrity as an example of how a "Virginian" could be made a Christian, which helped to revive support for the company behind the Virginia colonies.

I also read The Castle in the Forest: A Novel by Norman Mailer, which was really weird.

The South Carolina Floyd, not the Virginia Floyd

A while back, I linked to this post, which references South Carolina federal judge Henry Floyd, whose name is not John Floyd, as I wrote.

John Floyd is the name of a former Governor of Virginia, and the Secretary of War under James Buchanan, and who died and was buried in Abingdon. His adopted daughter was the wife of federal judge Robert William Hughes, who was also buried in Abingdon. I have written about Judge Hughes here and here.