Which birthday was it on Saturday?

Think Richard Petty.

(Photo from this flickr source).

On getting barred from the 27th Circuit

The Roanoke Times reports here that Circuit Judge Showalter has "taken the unusual step of barring a Christiansburg lawyer from practicing law in his judicial circuit.."

District Court decision affirmed in Virginia open primary case

Today, in Miller v. Brown, the Fourth Circuit in an opinion by Senior Judge Wilkins, joined by Judge Duncan, affirmed in its entirety the prior decision by District Judge Henry Hudson in the open primary case, rejecting the issues raised by the plaintiffs and the election officials.

Didn't hear the last 2:00

It appears I wasn't the only one with this experience, as I received an e-mail that says:

September 25, 2007

Dear V-Pass Customer,

We apologize the live online audio broadcast of Georgia Tech at Virginia football game on Saturday, Sept. 22 dropped silent near the end of the game. We have resolved the technical issue that caused this to happen and we are confident a similar occurrence will not happen again.

----

Pay $40, and it conks out right at the end of the game.

Your division leader

ACC COASTAL DIVISION

School, Conference, Overall

Virginia, 3-0, 3-1

Miami, 0-1, 3-1

Virginia Tech, 0-0, 3-1

Duke, 0-1, 1-3

North Carolina, 0-1, 1-3

Georgia Tech, 0-2, 2-2

Weekend project

Since I didn't go to the Georgia Tech game, didn't work, didn't play golf, and didn't mow the grass, yesterday and today I wrote my first-ever Wikipedia entry, on Judge Robert W. Hughes.

Best thing I read today

Today's Bristol paper had this Sharon Randall column, about taking her brother, a life-long Clemson fan who is blind, to his first in-person Tigers football game at Death Valley.

It says they had a big time.

The last time I linked to Sharon Randall, her son took her to the Final Four.

On the late Judge Cridlin

Besides Judge Widener on Wednesday, retired Judge Joseph Cridlin of Lee County died on Friday.

The Bristol paper published this obituary:

"JONESVILLE, Va. – Judge Joseph N. Cridlin, 94, of Jonesville, Va., was born April 13, 1913 and passed away Sept. 21, 2007, at Lee Regional Medical Center in Pennington Gap, Va.
His parents, Judge George Patton Cridlin and Sallie Campbell Smith Cridlin, preceded him in death.
Judge Cridlin was a lifelong resident of Lee County and a graduate of William & Mary College and the Marshall Wythe School of Law. He began his law practice in Jonesville in 1935 and was appointed as a Virginia Circuit Court judge in 1960, retiring in 1975. He continued to do substitute judicial work for the next 20 years and was a member of the Virginia State Bar for 72 years. At the time of his death, Judge Cridlin was president and chairman of the board of Powell Valley National Bank in Jonesville.
Judge Cridlin served in the U.S. Army for four years during World War II with tours of duty in Australia, New Guinea and the Philippines. He was commissioned as a 1st lieutenant before being discharged in 1946.
Judge Cridlin was a lifelong member of the Jonesville First United Methodist Church, where he taught Sunday school for over 40 years. He was a charter member and first president of the Jonesville Lions Club in 1940. He was also a charter member of the Cedar Hill Country Club, a Mason and a member of Preston Masonic Lodge No. 47 AF&AM since 1940.
In addition to his parents, Judge Cridlin was preceded in death by his wife, Fay Fuller Cridlin, brother, Clyde Y. Cridlin, and sister, Roberta Cridlin Vergara.
He is survived by son, George Fuller Cridlin and wife Karen, Jonesville, Va.; daughter, Josephine Cridlin Roddenberry and husband Ken, Jonesville, Va.; grandchildren, Stephanie Rowlett Dourado and husband Eli, Arlington, Va., Joseph Patton Cridlin and wife Shelley, St Petersburg, Fla., and Harrison Fuller Cridlin, Jonesville, Va."

Not too long ago I had this post about Judge Cridlin.

Terminological inexactitude and qualified immunity

For reasons that are not entirely clear to me, Judge Shedd in the case of Henry v. Purnell decided to hold forth on a number of the oddities of the law of qualified immunity, in the Fourth Circuit.

The Supreme Court requires the two-parts of the qualified immunity to be addressed in a particular sequence, for reasons that are not entirely satisfactory. The initial inquiry is whether the plaintiff has stated or proven sufficient facts to show a constitutional violation - in other words, does the plaintiff have a case on the merits? If the trial court decides this first inquiry against the plaintiff, is it a decision based on qualified immunity, or not? And, does it matter?

Judge Shedd notes:

"When resolving cases on the first Saucier question, courts sometimes state that the absence of a constitutional violation entitles the defendant to qualified immunity. At least one circuit court has specifically rejected this approach, noting that a defendant in that instance prevails not because of qualified immunity but, instead, because the plaintiff "did not prove an essential element of the § 1983 claim." Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007). In several recent opinions, the Supreme Court appears to have segregated the initial Saucier inquiry of whether a constitutional violation occurred from the second inquiry of whether the defendant is entitled to qualified immunity. See, e.g., Morse v. Frederick, ___ U.S. ___, 127 S. Ct. 2618, 2624 & n.1 (2007) (expressly declining to decide the case on qualified immunity grounds based on the conclusion that no constitutional violation occurred); Groh v. Ramirez, 540 U.S. 551, 563 (2004) ("Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation."); Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (expressing "no view as to the correctness of the Court of Appeals’ decision on the constitutional question" because, in any event, "the Court of Appeals was wrong on the issue of qualified immunity"); see also id. at 601 (Breyer, J., concurring) (noting that Saucier "requires lower courts to decide (1) the constitutional question prior to deciding (2) the qualified immunity question")."

Of course, the characterization makes some practical difference when the defendant's motion for summary judgment is denied, because an ordinary denial of summary judgment on the merits is not immediately appealable, but denial of a motion for summary judgment based on qualified immunity is immediately appealable.

The second point is how does the burden of proof apply to a motion for summary judgment based on qualified immunity. This opinion, for the first time that I can recall, undertakes a thorough survey of the language from the Fourth Circuit precedents on this point, which are contradictory and inconsistent with the explanations from some other circuits. Qualified immunity is an affirmative defense, that the defendant must raise, but the burden of proving the claim on the merits is always on the plaintiff.

Judge Shedd explained:

"The plaintiff bears the burden of proof on the first question — i.e., whether a constitutional violation occurred."

He goes on to say:

"The defendant bears the burden of proof on the second question — i.e., entitlement to qualified immunity."

In making this statement, the judge noted that other circuits and some of the Fourth Circuits take the opposite view. I'm not sure that even makes sense to say the defendant has the burden of proof on what is essentially a legal question - was the constitutional right violated by the defendant clearly established?

The Green and the Gold

A while back I read this item which says, among other things, that the faculty of the College of William & Mary have given their green and gold to federal candidates for '08 (as of July 30, 2007) at a ratio of 99% to Democrats and 1% to Republicans.

The Flat Hat says a Facebook survey shows that liberals outnumber conservatives among the William & Mary students on Facebook, 2.84 to 1.

Some links

The Judicial Conference says - transcripts will soon be available online, through PACER at eight cents per page.

Once again, the NY Times says, it will quit charging for much of its content.

Here in this Megan McArdle post is debated the question, "How conservative is the Supreme Court? How deep is the ocean? How high is the sky?"

On the late Judge Widener of the Fourth Circuit

The Bristol paper reports here that Senior Judge H. Emory Widener, Jr., of the U.S. Court of Appeals for the Fourth Circuit, died at his home here in Abingdon yesterday, at the age of 83.

My wife saw the article and asked me if this was the fellow with the hat who ate lunch at the Empire. Indeed, that's the one, the same man my dad knew from the Math Olympics, and who is the subject of posts here, here, and here.

Today's links

The Roanoke paper reports here on a Southwest Virginia farmer who filed suit over the use of his picture on a card that asks, would you rather be spanked or goosed? The case was filed in Roanoke County Circuit Court.

Here is a profile of a stout U.Va. man, who died at age 24 from muscular dystrophy.

Here from Time magazine and here from USAToday are items on the new Jeffrey Toobin book about the U.S. Supreme Court.

The field goal call that got reversed

Nobody has anything good to say about this bit of refereeing.

On Roanoke's Judge Coulter

The Roanoke paper had this story on the life and times of the late Circuit Court Judge Jack Coulter.

The article says in part:

"Coulter was twice nominated for seats on the Virginia Supreme Court, the second coming down to the flip of a coin. In 1987, Roanoke-area legislators flipped a coin to break a deadlock over whether to back Coulter or Chief Appeals Court Judge Lawrence Koontz for the state Supreme Court.

That seat eventually went to the Winchester Circuit Court Judge Henry Whiting. Koontz succeeded Whiting in 1995."

From the folks who brought us Ward Churchill

The Tallahassee paper reports:

"A 'Southern-type thing'

Billy Smith has been providing Florida State head coaches with on-field security since 1964. The sight of the retired Florida Highway patrolman on the sideline in uniform with a gun in his holster is just a part of Florida State football.

That practice, however, isn't to the liking of the University of Colorado, which according to Smith told him he couldn't be in uniform and could not have a gun. Smith said that was before FSU President T.K. Wetherell stepped in, talked to his Colorado counterpart and reached an agreement for Smith to be there on Saturday night.

“They allow their highway patrol, sheriff's office, police department and campus police but not the visiting trooper,” Smith said. “One of their people told me, 'Oh, you do the Southern-type thing.' ”

It's the first time Smith encountered the problem."

On last week's Virginia Supreme Court rulings

Friday was decision day in the Virginia Supreme Court, the first of the fall. Here is the synopsis page. The VLW Blog has several posts on the decisions.

Here from the Norfolk paper, here from The Hook, here from the Richmond paper, and here from the Roanoke paper are stories about the decision in the Highland County wind farm case. The opinion is Miller v. Highland County, by Justice Keenan. It decides procedural issues related to the zoning.

Here from the Washington Post and here from the AP are stories on the tree injunction case, modernizing the tree law of the Commonwealth. The opinion is Fancher v. Fagella, by Senior Justice Russell. In this opinion, the Court replaced one judge-made rule with another, with unknown effects on property rights throughout the Commonwealth, in the interests of modernity and urbanization.

What's interesting is the Court almost adopted the Blackwelder test for injunctive relief, see Blackwelder Furn. Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977). The Court says, by way of advisory opinion: "The decision whether to grant an injunction always rests in the sound discretion of the chancellor, and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. Any burden imposed on the public should also be weighed. Akers v. Mathieson Alkali Works, 151 Va. 1, 8-9, 144 S.E. 492, 494 (1928)." Maybe Blackwelder adopts the Akers v. Mathieson Alkali test.

Here is a story from the Norfolk paper on the FOIA case decided against the Norfolk Airport Authority. The opinion is Fenter v. Norfolk Airport Authority, by Senior Justice Stephenson.

Here from the Leesburg paper is an article on the Supreme Court's decision reversing an order imposing a writ of mandamus against a town official, as part of a long-running dispute between Leesburg and a developer. The opinion is Umstattd v. Centex Homes, G.P., by Senior Justice Russell.

Here the Newport News paper reports on the Supreme Court's decision upholding a multi-million dollar verdict in an asbestos case. The opinion is John Crane, Inc. v. Jones, Admin'x.

Nominee No. 4

Via ConfirmThem, the Washington Post reports here that Rod Rosenstein, U.S. Attorney for the District of Maryland, will be nominated to the Fourth Circuit to the seat formerly held by the late Judge Murnaghan. There have been stories like this before about Rosenstein's prospects.

If it's true, then there would be four pending nominations for the five vacancies on the Fourth Circuit.

Give us one more - from Virginia.

824 Supreme Court orders

It says here the Virginia Supreme Court entered 824 orders on motions other than for extension of time in 2005-2006.

Relaxed after drinking

The puppy Jenna, happy after a walk.

Dahlia Lithwick smacks down Steve Matthews on account of Rush Limbaugh

This column in Slate gives the latest nominees to the Fourth Circuit a big thumbs down - on the theory that one of them at least is a known associate of wingnuts on the Right.

This is encouraging to those of who never join anything and don't know anybody, maybe we'll be the only ones left to be judges in the end.

Oops, too late, I'm already associated with this group. (By the way, scroll down and read the first comment below the ODBA picture, what's that all about?)

On the late Ben Gardner

The whole time I've been a lawyer, Jim Elliott has told me stories about his friends, including one in particular named Ben Gardner from Martinsville.

Stories about him are in today's Martinsville paper and yesterday's paper, and this piece from the Danville paper reproduced on the law firm's website.

He had the sailing column on Roanoke.com, and could write about whatever he wanted there, such as this. If you root around the website you can also find this story by Mark Taylor about having the last sail of the season with Ben Gardner and crew.

Leftovers

From last week:

The Joel Bieber blog has this post on the case of illegal use of a musical device in Portsmouth, involving ice cream trucks - which reminds of another case, the one with the preacher singing too loud in his case.

On the farm in Blacksburg, the scientists are converting poultry litter into fuel.

This incredibly interesting article deals with funky predictors that defy the experts, and the resulting decline of expert discretion, against the background of how Virginia predicts which sex offenders need to be committed, post-incarceration. Evidently, the Commonwealth uses some scoring system to big the worst offenders:

"You see, Virginia’s version of the SVPA contained a super-crunching innovation. The statute included a “tripwire” that automatically sets the commitment process in motion if a super-crunching algorithm predicts that the inmate has a high risk of sexual offence recidivism. Under the statute, commissioners of the Virginia Department of Corrections were directed to review for possible commitment all prisoners about to be released who “receive a score of four or more on the Rapid Risk Assessment for Sexual Offender Recidivism”. The Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR, and pronounced “razor”) is a points system based on a regression analysis of male offenders in Canada. A score of four or more on the RRASOR translates into a prediction that the inmate, if released, would in the next 10 years have a 55 per cent chance of committing another sex offence."

And, last, someone sent me this link to a website with some rather downhome constitutional arguments, on the topic of whether the Clean Water Act preempts Virginia's Dillon Rule, as regards the regulation of biosolids as fertilizer - that describes the history of litigation over anti-biosolid ordinances, in state and federal court in Virginia. It is interesting to me in part because of its characterization of the Bristol fiber case, in which I was a more than interested spectator. (One point omitted is that the Supreme Court eventually ruled in the Missouri case that Judge Jones got it wrong on the preemption issue.) In the Bristol case, we had to deal with making the claim, can a Virginia city have standing to sue the Commonwealth to enforce federal rights?

On that point, this is part of what we argued:

"There can be no doubt that there are constitutional constraints on the states’ regulation of local government. See Romer v. Evans, 517 U.S. 620, 626, 629-31 (1996) (upholding Equal Protection challenge brought by municipalities and others against a state law prohibiting municipalities from adopting laws designed to protect homosexual persons from discrimination); Lawrence County v. Lead-Deadwood School District, 469 U.S. 256, 268-69 (1985) (upholding school district’s Supremacy Clause challenge to state law requiring distribution of federal funds received by local school district); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) (upholding school district’s challenge to state law prohibiting school districts from using mandatory busing to achieve racial integration); Board of Education v. Allen, 392 U.S. 236 (1968) (upholding school district’s attack on state statute requiring school districts to supply books to parochial schools). Where the interests of state and local government diverge on constitutional issues, local government meets the requirements for standing. In particular, local government has standing to bring a Supremacy Clause challenge to state statutes limiting local government in violation of federal law.

“Courts that have faced suits based on federal statutes . . . have concluded that subdivisions do have standing to sue the state.” 13A WRIGHT, MILLER, AND COOPER, FED. PRAC. & PROC. JURIS. 2d § 3531.11. See Branson School District RE-82 v. Romer, 161 F.3d 619, 628-30 (10th Cir. 1998), cert. denied, 526 U.S. 1068 (1999) (“A political subdivision has standing to sue its political parent on a Supremacy Clause claim”); Rogers v. Brockette, 588 F.2d 1057, 1067-1071 (5th Cir.), cert. denied, 444 U.S. 827 (1979) (local school board has standing to bring action against state and others challenging constitutionality of state statute which required certain school districts to participate in subsidized breakfast program); Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 893 F. Supp. 301, 315 (D.N.J. 1995) (“municipalities may assert claims against the creating state under the Supremacy Clause”); San Diego Unified Port District v. Gianturco, 457 F. Supp 283, 289-290 (S.D. Cal. 1978), aff’d on other grounds, 651 F.2d 1306, 1309 n.7 (9th Cir. 1981) (“If the Supremacy Clause is to be effective in achieving its purpose, its dictates must be enforceable by political subdivisions of states as well as by individuals”). “Decisions ruling that state-created municipalities or other government districts lack Fourteenth Amendment rights against the states creating them do not apply to suits brought to challenge state activities under the Supremacy Clause on grounds of preemption by federal law.” 13A WRIGHT, MILLER, AND COOPER, supra, § 3531.11 at n.55. “[No] Supreme Court case has held that a political subdivision is barred from asserting the structural protections of the Supremacy Clause of Article VI in a suit against its creating state.” Branson School Dist. RE-82, 161 F.3d at 629.

Even under other provisions of the Constitution, standing for a political subdivision might be found. See Washington, 458 U.S. at 487 n.31 (upholding attorneys’ fee award to local school board against state; “[w]hile appellants suggest that it is incongruous for a State to pay attorney’s fees to one of its school boards, it seems no less incongruous that a local board would feel the need to sue the State for a violation of the Fourteenth Amendment”); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 449 U.S. 1039, 1041-42 (1980) (White, J., dissenting from denial of certiorari) (arguing that denial of political subdivision standing was “inconsistent” with the Court’s holding in Board of Education v. Allen); City of Charleston v. Public Service Commission of West Virginia, 57 F.3d 385, 389-90 (4th Cir.), cert. denied, 516 U.S. 974 (1995) (in Contract Clause case, “whether the cities have standing to bring this suit is unclear”); Amato v. Wilentz, 952 F.2d 742, 755 (3d Cir. 1991) (“Judicial support for [rule against standing] may be waning with time”); School Bd. of the City of Richmond, Va. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987) (upholding standing of school district of the City of Richmond in appeal against the Commonwealth in part “because of the direct economic injury it has suffered as a result of the state defendants’ unconstitutional conduct”); Benjamin v. Malcolm, 803 F.2d 46, 54 (2d Cir. 1986), cert. denied, 480 U.S. 910 (1987) (city has standing for third-party claim against state as to claims based on prison overcrowding); United States v. Alabama, 791 F.2d 1450, 1455 (11th Cir. 1986), cert. denied, 475 U.S. 1085 (1987) (citing Rogers, there is no per se rule against municipality suits in the Eleventh Circuit); South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 504-05 (6th Cir. 1986) (“There may be occasions in which a political subdivision is not prevented, by virtue of its status as a subdivision of the state, from challenging the constitutionality of state legislation”); Akron Board of Education v. State Board of Education of Ohio, 490 F.2d 1285 (6th Cir.), cert. denied, 417 U.S. 932 (1974) (Fourteenth Amendment claim of local board against state)."

Finally, on judicial selection, the appointment of judges (such as we do in Virginia) is taking a beating lately. This article from the K.C. Star describes the furor over the "Missouri" plan right there in Missouri, while this post describes a study that says appointed judges are no better than elected judges (even though they write more).

On Frosty Landon

This Bacon post tells of his retirement.

Whenever I see him out and about, I like to give him grieve over whatever is my latest FOIA snafu - it must be his fault, because he is Mr. FOIA.

What the RedStaters are saying

Here (with 50+ comments) and here are posts at ConfirmThem on the nominations of Getchell and Matthews.

One commenter says:

"Why did Bush needlessly nominate someone not on the Warner/Webb approved list? Such foolishness! As we have already discussed, without Graham's support, Matthews is dead on arrival. Now Gretchell is dead on arrival. Oh, by the way, Conrad from North Carolina is also dead on arrival. As I have said before, maybe Bush is trying to generate an election issue in 2008. He must know perfectly well that Conrad, Gretchell and Matthews are nonconfirmable - all are very conservative white Southern males and we all know that the Dems hate those types! My only hope is that these Fourth Circuit three will make Keisler look like a liberal in the Dems' eyes and encourage his confirmation as a compromise."

Another says:

"This is just crazy. Why in the name of our sweet savior didn't Bush nominate Getchell a year ago? Either insanity, incompetence on an historic level or deliberate malfeasance."

On the Tennessee tax on illegal drugs

A while back, I had this post about the Tennessee tax on illegal drugs.

Now, a panel of the Tennessee Court of Appeals has ruled that the tax is unconstitutional, as reported here and discussed in this TalkLeft post.

The opinion in the case of Waters v. Chumley is here.

Once again, I look to Bill Hobbs for comment, and it sounds like now he thinks it is a bad idea.

By the way, Bill Hobbs has out a short book about Fred Thompson, titled Who is Fred Thompson? Earlier this year I went to a dinner and briefly Fred Thompson was there, and the woman standing next to me asked the same question. I told her as best I could, but I didn't think to charge her anything.

I wonder what is Fred Thompson's position on the taxation of illegal drugs. Evidently, he is taking questions from bloggers, or some of them, as noted here.

On books

Ray Ward has been reading Thomas Merton's The Seven Storey Mountain, which I have read at some time or another.

Or was it The Seven Pillars of Wisdom? I think I have read both.

The book I just read was a biography of James Smithson, whose bequest led to the creation of the Smithsonian. Before that, I read a collection of O. Henry stories, the two latest Gabriel Allon books by Daniel Sylva, and The Forest by Edward Rutherfurd.

Somehow, Dana picks the books, I just read them.

Lame DOJ take on net neutrality

This Concurring Opinions post debunks a public comment from the Antitrust Division of the Department of Justice on net neutrality.

The government says:

"The Department submits, however, that free market competition, unfettered by unnecessary governmental regulatory restraints, is the best way to foster innovation and development of the Internet. Free market competition drives scarce resources to their fullest and most efficient use, spurring businesses to invest in and sell as efficiently as possible the kinds and quality of goods and services that consumers desire. Past experience has demonstrated that, absent actual market failure, the operation of a free market is a far superior alternative to regulatory restraints."

That's great - if the government would act to force and enforce competition. If there really was competition, net neutrality would not be an issue.

Here's more from Techdirt: "Does the DOJ not realize that the market for broadband is already heavily regulated, which is why most consumers here only have one or two choices -- compared to other countries that have created more open markets on top of the infrastructure, allowing for competition, faster speeds and increased innovation?"

On mountaintop removal

This article is summarized:

"This Comment examines the legal strategies and techniques utilized in a series of environmental lawsuits challenging mountaintop removal coal mining. This case study also explores the role that Public Justice plays in affecting positive change through public interest law. Many are unaware of both the devastation mountaintop removal coal mining causes in the Appalachians and the contributions of trial lawyers to public interest law. To shed light on both these issues, this Comment discusses the background of mountaintop removal coal mining and Public Justice, the history of litigation and legal strategies used to further the campaign against such devastating mining techniques, and the role of politics, policy, and publicity."

On sovereign immunity and the Virginia Tech victims

The Washington Post ran this article about how some law firm has been retained by some of the families of victims from the shootings at Virginia Tech.

Part of the discussion is whether the Commonwealth could rely on sovereign immunity, and the caps contained in the Virginia Tort Claims Act.

In "Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit," 43 A.L.R.4th 19 (1986 & Supp.), the authors wrote:

"To balance the public's right of action pursuant to such waiver of immunity with the government's need to protect public coffers from potentially devastating claims, several jurisdictions have adopted statutes and ordinances, often incorporated in waiver legislation, limiting the amounts or kinds of damages recoverable against government tortfeasors.[FN3] Courts have almost uniformly recognized that legislative bodies have the power to prescribe such limits, and that the limits prescribed are constitutionally valid (§§ 3-7, infra). Though they may abridge the remedies of victims of government, as opposed to private torts, damage limitation statutes or ordinances are almost unanimously viewed as having a rational basis in the government's need to provide for effective risk management (§ 3[a], infra), although one court has applied the strict scrutiny test in concluding that a statute limiting recovery to "economic losses" unconstitutionally deprived a government tort victim of a fundamental right.[FN4] In addition to repelling equal protection attacks on damage limitation laws, the courts have also consistently rejected arguments that such enactments violate due process (§ 4, infra), or that they abridge state constitutional guaranties of access to courts for redress of grievances (§ 5, infra), or impair vested rights (§ 6, infra). With respect to the latter arguments, the courts have reasoned that damage limitation statutes involve no denial of redress or impairment of rights where there was no right of action at all prior to waiver of governmental immunity, that a right to redress does not include a right to full compensation, and that the restriction of damages recoverable by victims of proprietary conduct is not objectionable where waiver legislation, by effectively abolishing proprietary-governmental analysis, broadens the class of persons entitled to relief."

The issue suggested by the discussion in the article is not the validity but the scope of the liability cap under the Virginia Tort Claims Act:

"Grenier argues that the state's immunity is not ironclad. He cites a provision of the state code that says a claimant can recover up to $100,000 "or the maximum limits of any liability policy maintained to insure against such negligence or other force if such policy is in force at the time of the act."

Virginal Tech does not have its own insurance. It is covered by the state Treasury Department's Division of Risk Management.

Virginia Solicitor General William E. Thro said he is confident that the courts would uphold the $100,000 cap. "Any ambiguities are construed in favor of the commonwealth," Thro said.

Grenier counters that he has not "found any case law that backs up the commonwealth's argument."

In fact, Grenier settled a wrongful death case with Virginia for $1.2 million in 2001 that involved a juvenile at a youth detention center.

In 2000, the state paid $750,000 to settle a suit brought by the daughter of a woman who was killed in 1997 when a balcony collapsed during the University of Virginia commencement ceremony. Several other relatives split separate settlements that totaled $790,000. Kilgore, who settled the University of Virginia case, said the state will have to quickly determine how broad its immunity is and then consider its options.

"Once the judge rules or is about to rule what your liability cap is or isn't . . . you have to quickly make strategic decisions about how to proceed," Kilgore said."

This BLT post says the lawyers are also working on a federal civil rights action. The state law of sovereign immunity has no application to a federal civil rights action; the state and its agencies cannot be sued in federal court because of the Eleventh Amendment, but state actors can be and are sued individually under 42 U.S.C. 1983 - but not for negligence, and in their individual capacities they have the defense of qualified immunity.

On the new Fourth Circuit nominees

President Bush has announced the nominations of E. Duncan Getchell, Jr., of McGuire Woods and Steve Matthews of Charleston to the Fourth Circuit.

ACS Blog links here to comments by Senator Warner in the Norfolk paper and in a press release from Senator Webb, to the effect that the White House will deserve what it gets for not picking someone from the list tendered by Warner and Webb.

The Richmond paper has this report, titled "White House defends nominee for 4th Circuit: Neither Warner, Webb recommended Getchell in bipartisan judge picks." This article says Senator Webb's office was likely to stop the Getchell nomination from getting anywhere.

The Washington Post had this report. Paul Fletcher had this post. Sean Andrussier had posts here and here.

If the White House had acted months (or years) ago, these nominees would have made it without any problem. But then, this is the same bunch that thought the Harriet Miers nomination really was a good idea, or so says Jan Crawford Greenburg.

Updated ABA trial standards

Here is the 2007 version of Civil Trial Practice Standards, from the ABA.

Cav Man v. Akron Zip

Sometime this week, cast a vote in the CapitalOne Bowl mascot challenge.

OK, it may not be as exciting as a sausage race, such as these.

They say I wouldn't recognize the place now

Some day, I might go back to Lancaster County just to look around, but everything I remember will be gone or have moved, like the Freeze and Frizz - it says here they lost their lease after 38 years.

Philly steaks and ice cream - I'd go there tonight, if it wasn't 450 miles away. If they were closed, I'd go to Captain Gus's Steak Shop. A couple of years back I went to New Jersey with Tim McAfee and Jerry Gray and they laughed when I ordered a steak sandwich that appeared to be about two feet long, but there was none left afterwards.

And, that guy we deposed at Fort Dix made it back to Southwest Virginia, or so I'm told.

On granting stay of money judgment in a bankruptcy case appealed to the Fourth Circuit

In the case of Mountain Empire Oil Co. v. Callahan, Trustee, Chief Judge Jones of the W.D. Va. concluded that he could and should order a stay of the money judgment he had previously entered, conditioned upon the posting of a supercedeas bond.

On the retirement of Paul Dellinger

Blue Ridge Muse has this post paying tribute to the now-retired Roanoke Times reporter, Paul Dellinger.

The Roanoke paper has Dellinger's parting shots and this story, which says in part:

"Sometimes, he could appear less than alert. "He'd sit with his eyes closed," recalled Glen Williams, senior U.S. district judge in Abingdon who has known Dellinger 30 years. But the next day, a complex trial would be boiled down in Dellinger's story to a complete and concise account. "He was listening. Had to be. He was always accurate. You could depend on him," Williams said. "He's a great reporter." . . .

Rick Rose, producing artistic director at the Barter Theatre, remembered meeting Dellinger at the news conference called to announce Rose's appointment to the theater in 1992. The local media chose to cover a leaping donkey at the Washington County Fair that day instead, Rose said, but Dellinger was at the theater announcement. . . .

"Paul is, of course, Southwest Virginia's ambassador to Vulcan, and so he and I have shared many tales about the world of science fiction," quipped another well-known local writer, Sharyn McCrumb. "He is encyclopedic on his knowledge of old Western movies, and occasionally I have asked him for research advice for something I was working on. In a story called 'Foggy Mountain Breakdown,' I needed the boys to go to a Southwest Virginia movie theater to see a Western serial, and Paul told me exactly what was playing that week in Bristol and described the action in the film for me." . . .

And what does a man who has written news stories for 44 years do when he retires?

He keeps on writing, of course. Dellinger says he'll write more fiction and also take some courses at a community college.

His wife suspects he'll also start sleeping late. "He tends to be a night owl.""

New one on me

Virginia has a Putative Father Registry, as described here.

A Brief History of Bristol's Rhythm and Roots Reunion

This Cybergrass post has the background on the downtown music festival that happens again in a few days.

My sister's blog

Check out the Rose Hill Virginia blog.

It could become the Fragments From Floyd of Lee County.

The next lawyer down the hall

From the VBA website:

"Congratulations to the VBA Young Lawyers Division for its superb showing in the American Bar Association Awards of Achievement Competition! At the recent ABA Annual Meeting, the VBA/YLD received first place in Division IC for its Comprehensive application, first place for Service to the Bar (Attorney Mentor and Referral Network), and second place for Service to the Public (Legal Food Frenzy). Many thanks to Awards of Achievement Chair Lucas Hobbs, who compiled the entry materials, and to the entire Division for its excellent work!"

They said it

"The only thing I was surprised about is that they scored."

Wyoming running back Devin Moore, quoted here, commenting on the 23-3 win over the Virginia Cavaliers.

From the same article:

"We just out-played them in every sense of the word."

Wyoming Coach Joe Glenn.

"Over the past 27 years, since a loss to Maryland in 1980, Virginia's two worst performances in terms of total yards have come in its past two games."

Eric Prisbell, in the Washington Post.

"Virginia had been able to hang around thanks mainly to senior Ryan Weigand, who punted 10 times for a 51.4-yard average. Weigand's 514 punting yards broke the school record of 449 yards held by Russ Henderson since 1977.

That 1977 team also was the worst Virginia team offensively until last year's Cavaliers averaged 257.2 yards in Mike Groh's first season as offensive coordinator."

Doug Doughty, in the Roanoke Times.

Bluegrass musician as ambassador

This little green footballs post tells of the new diplomatic position of a former bandsman with Doyle Lawson & Quicksilver.

Doyle himself is from near Kingsport.

From YouTube, here are two minutes of Doyle Lawson & Quick Silver with Jamie Dailey:

Has the law on motions to dismiss really changed?

This Legal Theory post links to an article that claims that the law has been changed so much by the recent Supreme Court cases that it is now unconstitutional.

On Virginia as the birthplace of U.S. corporate law

William & Mary Law Professor Oman has this post, titled Virginia and the Birth of Corporate Law.

He says in part:

"The third charter was provoked by the desire of the company to extend its jurisdiction to take in most of the western Atlantic. In particular, they wanted control of Bermuda, where a Virginia-bound ship had wrecked, living about 120 colonists to live on the island for nearly a year while they built a ship to take them to Virginia. (The incident served as the inspiration for Shakespeare's play The Tempest.) The new charter, however, did several things beyond giving the company control over 'The Devil's Isles.'

. . . [M]ost interestingly in my view, it dispensed with the oath of supremacy for investors. This meant that Catholics would be allowed to buy shares in good conscience. The last move is interesting because while the colony remained militantly Protestant and anti-Catholic (or at least anti-Spanish), the innovation does mark the beginning of a shift toward a view of commerce as a realm in which religious differences need not be an impediment to peaceful cooperation."

Professor Tribe, wrong again

This Concurring Opinions post says that Professor Tribe takes the view that a requirement of net neutrality would violate the First Amendment rights of the network providers.

When there is a high level of broadband competition everywhere, then I'll be sympathetic to the "speech" rights of the network owners.

Competition for West and Lexis?

This post links to others discussing a new effort to publish federal and state court opinions for free on the Internet.

On Judge Kelsey

The VLW Blog has some lists of names of potential nominees to replace Justice Lacy on the Virginia Supreme Court.

Judge D. Arthur Kelsey of the Virginia Court of Appeals is one of my favorites, because he has written so many interesting articles, such as these available online:

Virginia’s answer to Daubert’s question behind the question

Appellate Review and Stare Decisis

PROCEDURAL DEFAULTS IN VIRGINIA TRIAL COURTS: The Adversarial Model & The Imperative of Neutrality

Legal Focus/Civil Litigation: Law and Equity in Virginia

and gave this speech

Law & Politics: The Imperative of Judicial Self-Restraint

in addition to the many cases in which he has written an opinion or cast a vote (such as these)

and he gave up the big-dollar partnership to be a judge (or so I have concluded),

even though I've met him just once

and he has ruled against my position every time (OK, just the one time).

I once heard former Solicitor General Walter Dellinger on C-SPAN opine in connection with one of the recent U.S. Supreme Court nominations: "there's something to be said for hyper-qualified candidates," or words to that effect.

Judge Shull's case to be argued in September?

The cases on the September argument document for the Virginia Supreme Court include the case of Judicial Inquiry and Review Commission of Virginia v. Shull, Judge, etc., or so it says on the argument docket page.

Rooting for one Maryland Terrapin

A fellow named Steffy went to my old high school and is the son of a girl in my sister's class and is the pre-season starting quarterback at Maryland (as described here, in a powerful article from the Baltimore Sun of which one of the commenters said simply, "This is the best article I've read all year.").

One of my high school football buddies, a fellow named Franciscus, was on scholarship at Maryland, and I saw him and his dad Rip on parents' night at Byrd Stadium in November of 1989 (with the Cavaliers winning, 48-21, as shown here).

OK, so that's two.

Today's links

South Carolinians are talking up former Chief Judge William Wilkins of the Fourth Circuit to be the next Attorney General, as written here and here, but the WSJ Blog puts former Fourth Circuit Judge Michael Luttig on its list.

The Norfolk paper has discovered that someone who has a computer on the Virginia Supreme Court system has done some work on Wikipedia.

This AP story tells about some kind of microtech solution to copper thefts from the CNX gas wells.

ABA Journal has this story about a judge appointing a lawyer to a criminal case and then holding him in contempt for not being ready for trial the next day. The closest thing to that I've experienced was when I was spotted at the courthouse, told to take my client and the store's representative and go work something out in a shoplifting case. (And, we did.)

Worth snatching

Here from somebody at the Kaufman and Canoles firm is an excellent article on Massie v. Firmstone, one of those Virginia law concepts that you usually learn about the hard away when your client's testimony goes a little awry and some good lawyer on the other side invokes it against you.

Man who shot Wallace to be released

This Juris post describes the upcoming release of Arthur Bremer, who shot George Wallace during the 1972 campaign.

About 30 years before the coining of the phrase, "NASCAR dad," Hunter Thompson described the efficacy of George Wallace's campaigning at auto racing events in Fear and Loathing: On the Campaign Trail '72.

The popularity of NASCAR has broadened quite a bit since then, while the appeal of politicians with the then-held views of Wallace has withered to naught.

The one page with my name in the U.S. Reports

Check out the list of counsel for amici curiae in the footnote on page 128 of Volume 541.

Or, just take my word for it.

On e-discovery in state court

This post says the National Commission on uniform state laws has approved Uniform Rules Relating to Electronically Stored Information.

No doubt those working on e-discovery in Virginia courts with the Boyd-Graves Conference will examine this document.

Ray Ward sums up brief writing

I agree with almost 100% of this, and the rest is probably just my own stubbornness.

That big DUI issue

Yesterday, the Fourth Circuit in U.S. v. Washington, in an opinion by Judge Niemeyer, joined by Judge Traxler, with Judge Michael dissenting, rejected the argument that a criminal defendant charged with driving while under the influence has a constitutional right under the Confrontation Clause to cross-examine the lab technician who handled his blood or breath test.

That's one of those issues that became interesting again after the Supreme Court's decision in Crawford, which creates an issue someone might raise any time out-of-court statements are used to try convict someone.

It really is that time again

Today the blog has got a ton of hits from Knoxville people, past and present, and not by way of the Instapundit, but instead some Vol fans have discovered this post - still one of my favorites.

On official capacity defendants

A few years ago, I filed a motion to dismiss a woman who had been sued only in her official capacity, with this argument:

A suit against a government official in her official capacity is, in effect, a suit against the government entity. See McMillian v. Monroe County, Ala., 520 U.S. 781, 785 n.2 (1997); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Joining both the Board members in their official capacity and Board itself is unnecessary and redundant. See Graham, 473 U.S. at 167 n. 14 (“There is no longer a need to bring official-capacity actions against local government officials, for . . . local government units can be sued directly for damages and injunctive or declaratory relief”). Based on these principles, federal courts in every region of this United States have dismissed official capacity claims as redundant, duplicative, or unnecessary, where the government itself is also named as a defendant. See Smith v. Metropolitan School Dist. Perry Tp., 128 F.3d 1014, 1021 n.3 (7th Cir. 1997) (“Because Smith’s suit is also against the entity, i.e., the School District and School Board, her claims against the principal and assistant principal, in their official capacities, are redundant”); Jackson v. Marion County Sheriff’s Dept., 67 F.3d 301, 1995 WL 564665 at *1 (7th Cir.) (“Although the suit against the officers in their official capacities was dropped, [plaintiff] was still able to pursue the identical claim against [the] County”); Alicea v. City of Chicago, 2002 WL 1021553 at *4 (N.D. Ill. 2002) (“because Alicea already names the City as a defendant, the claims against Jason in his official capacity are dismissed as duplicative”); Associated Fire Fighters of Illinois, AFL-CIO v. Town of Cicero, 2002 WL 460875 at *1 (N.D. Ill. 2002) (citing cases dismissing official capacity defendants as “redundant”); Love-Lane v. Martin, 2002 WL 745853 at *4 (M.D.N.C. 2002) (official capacity claim “is redundant and will be dismissed”); Goins v. Hitchcock I.S.D., 191 F. Supp.2d 860, 868 (S.D. Tex. 2002) (dismissing official capacity as “redundant”); Burns v. Board of Com’rs of County of Jackson, Kansas, 2002 WL 596137 (D. Kan.); Gonser v. Twiggs County, 182 F. Supp.2d 1253, 1256-1257 (M.D. Ga. 2002) (dismissing official capacity claims as “duplicative of the suit against the County”); Ramsey v. Schauble, 141 F. Supp.2d 584, 591 (W.D.N.C. 2001) (the “official capacity claim . . . is redundant and shall be dismissed”); McCall v. Dallas Ind. School Dist., 2001 WL 1335853 at *2 (N.D. Tex. 2001); Fultz v. Whittaker, 187 F. Supp.2d 695, 708 (W.D. Ky. 2001) (dismissing official capacity claims which “duplicate the action against the” government entity); Holley v. City of Roanoke, 162 F. Supp.2d 1335, 1341 n.2 (M.D. Ala. 2001) (dismissing official capacity claims); Rocha v. Baca, 2000 WL 1909474 at *7 (C.D. Cal. 2000) (dismissing official capacity claims “as duplicative”); Burton v. City of Philadelphia, 121 F. Supp.2d 810, 812-813 (E.D. Pa. 2000) (dismissing official capacity claims as “redundant”); Roberts v. City of Geneva, 114 F. Supp.2d 1199, 1210 (M.D. Ala. 2000) (“Plaintiff’s § 1983 claims against Lindsey, Motley, and Barney in their official capacities are due to be dismissed, because Plaintiff also has brought his § 1983 claims against the City”); Harford v. County of Broome, 1999 WL 615190 at *6 (N.D.N.Y. 1999) (dismissing official capacity claims); Sheriff’s Silver Star Ass’n of Oswego County, Inc. v. County of Oswego, 56 F. Supp.2d 263, 265 n.3 (N.D.N.Y. 1999) (same); Bracey v. Buchanan, 55 F. Supp.2d 416, 420 (E.D. Va. 1999) (granting motion to dismiss for failure to state a claim); Perry v. Carter, 1998 WL 1745365 at *6 (E.D. Va. 1998) (dismissing official capacity claim “since the same is duplicative of the suit against the City itself”); R.S.S.W., Inc. v. City of Keego Harbor, 18 F. Supp.2d 738, 750 (E.D. Mich. 1998) (dismissing official capacity claims “as duplicative of the claims against the municipality”); McCaslin v. Wilkins, 17 F. Supp.2d 840, 844 (W.D. Ark. 1998) (“the Court, in following the majority of courts on this issue, will therefore dismiss those claims as against Wilkins and White in their official capacities,” citing cases); Gibson v. Hickman, 2 F. Supp.2d 1481, 1482-1483 (M.D. Ga. 1998) (official capacity claims dismissed as “indistinguishable” from the claim against the government entity); Alvarez v. Montgomery County, Md., 963 F. Supp. 495, 497 (D. Md. 1997) (noting earlier dismissal of official capacity claims “as they were duplicative of the claim brought directly against Montgomery County”); Luke v. Abbott, 954 F. Supp. 202, 204 (C.D. Cal. 1997) (“If both [the government and an official capacity defendant] are named, it is proper upon request for the Court to dismiss the official-capacity officer, leaving the local government entity as the correct defendant”); Storm v. Town of Woodstock, N.Y., 944 F. Supp. 139, 143 (N.D.N.Y. 1996) (dismissing official capacity claims “as redundant”); Carnell v. Grimm, 872 F. Supp. 746, 752 (D. Haw. 1994) (“Any claims against Flynn and Noguchi in their official capacities duplicate plaintiff’s claims against the CCH and are dismissed”); Thompson v. City of Arlington, Tex., 838 F. Supp. 1137, 1143 (N.D. Tex. 1993) (“Since the official capacity claims are in reality claims against City, the court will dismiss those claims as to the individual defendants”); Zervas v. District of Columbia, 817 F.Supp. 148, 151 (D.D.C. 1993) (dismissing as duplicative claims against officials in their official capacity where municipality had been sued).

Besides redundancy, dismissal of official capacity claims is consistent with the policy that litigation should proceed in the name of the real parties in interest, and “will promote judicial efficiency and reduce the chance of confusion.” Keene v. Rinaldi, 127 F. Supp.2d 770, 774 (M.D.N.C. 2000). As the Fourth Circuit has explained, “[w]here, as here, no claim against officials in their individual capacities was made, a simpler, technically correct, and by far preferable structuring would have been to name the [government entity] as the sole defendant.” Spell v. McDaniel, 824 F.2d 1380, 1396 (4th Cir. 1987). Compare Andrews v. Daw, 201 F.3d 521, 525 (4th Cir. 2000) (“the real party in interest in an official-capacity suit is the entity”); Gray v. Laws, 51 F.3d 426, 431 (4th Cir. 1995) (same); Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“To keep both the City and the officers sued in their official capacity as defendants in this case would have been redundant and possibly confusing to the jury”); Sims v. Unified Government of Wyandotte County/Kansas City, Kan., 120 F. Supp.2d 938, 945 (D. Kan. 2000) (“When a plaintiff names both a municipality and a municipal officer in his official capacity as defendants in an action, the suit against the officer is redundant, confusing, and unnecessary and should be dismissed”); Luke v. Abbott, 954 F. Supp. 202, 204 (C.D. Cal. 1997) (“it is no longer necessary or proper to name as a defendant a particular local government officer acting in official capacity. To do so only leads to a duplication of documents and pleadings, as well as wasted public resources for increased attorneys fees”); White v. City of Chicago, 1991 WL 204946 at *2 (N.D. Ill. 1991) (“Dismissing the official-capacity claim will serve to streamline and clarify the complaint”).

The dismissal should be with prejudice. See Rowe v. City of Fort Lauderdale, 8 F. Supp.2d 1369, 1375 n.7 (S.D. Fla. 1998) (dismissal of official capacity claims with prejudice); Garrett v. Clarke County Bd. of Educ., 857 F. Supp. 949, 952 (S.D. Ala. 1994) (same); Kenny v. Whitplain Township, 1996 WL 445352 at *3 (E.D. Pa.) (same); Hamilton v. City of Chicago, 1993 WL 535351 at *2 (N.D. Ill. 1993) (same); compare Busby, 931 F.2d at 776 (upholding directed verdict as to official capacity claims); Douris v. County of Bucks, 2001 WL 767579 at *7 (E.D. Pa.) (granting summary judgment on “unnecessary” official capacity claim); Sims, 120 F. Supp.2d at 945 (entering judgment on the pleadings as to official capacity claims); Walters v. City of Andalusia, 89 F. Supp.2d 1266, 1275 (M.D. Ala. 2000) (granting summary judgment on official capacity claims).

The motion was granted before the other side replied.

Now I read this footnote in a Buchanan County school board case:

"The individual defendants also assert in their Motion to Dismiss that a suit against them in their official capacities is redundant “because the School Board itself is a party and official capacity suits represent only another way of pleading an action against an entity of which an officer is an agent.' (Defs.' Mot. Dismiss Am. Compl. ¶ 5.) While it is true that a suit against a municipal officer is a suit against the entity itself, it is established that individual officers can be named in their official capacities even if the entity is also a party. See Chase v. City of Portsmouth, 428 F. Supp. 2d 487, 489-90 (E.D. Va. 2006) ('A significant amount of case law shows government officials named in their official capacities alongside the entities for which they are associated . . . . Naming [the officials] . . . even though damages cannot be obtained from them, does provide a certain level of public accountability.' Id."

That's really lame, I'm not buying it for a minute. Keeping parties in the case who cannot be liable solely for purposes of "public accountability" is a completely alien concept to any notion of civil procedure that I know about.

Also, you'd think that the individual defendants sued in their individual capacity would have a good shot at a qualified immunity defense to the First Amendment claim in that School Board case.

The Tortoise and the Hound

Zeno might have been wrong to suggest that Achilles could never catch the tortoise, but certainly Jenna will not catch the turtle, because it spooked her and so she retired to a safe distance where she could bark at it.

The paradox of Achilles and the tortoise is stated something like this:

"The Tortoise challenged Achilles to a race, claiming that he would win as long as Achilles gave him a small head start. Achilles laughed at this, for of course he was a mighty warrior and swift of foot, whereas the Tortoise was heavy and slow.
'How big a head start do you need?' he asked the Tortoise with a smile.
'Ten meters,' the latter replied.
Achilles laughed louder than ever. 'You will surely lose, my friend, in that case,' he told the Tortoise, 'but let us race, if you wish it.'
'On the contrary,' said the Tortoise, 'I will win, and I can prove it to you by a simple argument.'
'Go on then,' Achilles replied, with less confidence than he felt before. He knew he was the superior athlete, but he also knew the Tortoise had the sharper wits, and he had lost many a bewildering argument with him before this.
'Suppose,' began the Tortoise, 'that you give me a 10-meter head start. Would you say that you could cover that 10 meters between us very quickly?'
'Very quickly,' Achilles affirmed.
'And in that time, how far should I have gone, do you think?'
'Perhaps a meter – no more,' said Achilles after a moment's thought.
'Very well,' replied the Tortoise, 'so now there is a meter between us. And you would catch up that distance very quickly?'
'Very quickly indeed!'
'And yet, in that time I shall have gone a little way farther, so that now you must catch that distance up, yes?'
'Ye-es,' said Achilles slowly.
'And while you are doing so, I shall have gone a little way farther, so that you must then catch up the new distance,' the Tortoise continued smoothly.
Achilles said nothing.
'And so you see, in each moment you must be catching up the distance between us, and yet I – at the same time – will be adding a new distance, however small, for you to catch up again.'
'Indeed, it must be so,' said Achilles wearily.
'And so you can never catch up,' the Tortoise concluded sympathetically.
'You are right, as always,' said Achilles sadly – and conceded the race."

On attorneys' fees

The increasing incidence of hourly rates in excess of $1,000 per hour has led some pundits to predict the end of hourly billing. See, e.g, Legal Marketing Blog, Is the Billable Hour Now Dead?

Meanwhile, I recently collected some cases about court-approved rates in the W.D. Va.:

"In recent years, this Court has approved hourly rates between $150 and $210. See Freeman v. Potter, 2006 WL 2631722 (W.D. Va.) ($200 rate in Title VII case); Loosemore v. Street, 2005 WL 2864749 (W.D. Va.) (hourly rates ranging from $95 to $185 were reasonable and in line with rates charged by counsel practicing in Big Stone Gap division in commercial case); Double K Properties, LLC v. Aaron Rents, Inc., 2003 WL 22697218 (W.D. Va.) ($210 rate in commercial case); Meade v. Barnhart, 218 F. Supp.2d 811, 813 (W.D. Va. 2002) ($150 rate in benefits case); Rike v. Harris, 2002 WL 1729517 (W.D. Va.) ($150 rate in Fair Housing Act case); Powell Valley Bankshares, Inc. v. Wynn, 2002 WL 728348, *3 (W.D. Va.) ($200 rate in commercial case); Hilt v. Hurd, 2001 WL 1517041, *2 (W.D. Va.) (statutory fees at $150 per hour out of court and $200 in court). Similarly, in Depaoli v. Vacation Sales Associates, L.L.C., 2007 WL 1675344, *6 (4th Cir.), the Fourth Circuit reduced to a hourly rate of $225 the fees in a successful Title VII case from the Eastern District of Virginia."

Today's links

This Volokh post links to a Washington Post editorial favoring confirmation of Leslie Southwick to the Fifth Circuit. Today, however, the Post published this letter opposing confirmation. Professor Bainbridge has this post in response.

In Arlington, a circuit court judge postponed ruling on constitutional issues related to the abusive driver fees, to wait and see whether the party gets convicted and suffers the imposition of the fees, according to this report.

I've never had a client try this defense in a contract case, but it says here that some people are faking death to escape their cell phone contracts.

It says here that newspapers make lots of mistakes.

This Charlottesville story describes increases in the number of foreclosures in Virginia.

I heard on Paul Harvey this story about the blind woman golfer who heard her hole-in-one.

Those bloggers

In this brief, the Council on American-Islamic Relations complains:

"Some of the most virulent reaction to the government’s naming of CAIR as an unindicted coconspirator can be seen by the reaction of various weblogging pundits. The website JihadWatch.org writes that with the naming of CAIR “[o]ne would think that would end forever the canny masquerade as a moderate civil rights organization, a charade it has been successfully pulling off for years.” Unindicted co-conspirators in Hamas funding case say Muslim civil rights woes increasing, JihadWatch.org, at http://www.jihadwatch.org/archives/016942.php. The website LittleGreenFootballs.com dismisses the civil rights report of CAIR, “one of the unindicted co-conspirators in the case against Hamas-linked ‘charity’ the Holy Land Foundation” as “bogus” and “inflated.” See Unindicted Co-Conspirators Whining Again, LittleGreenFootballs.com (June 15, 2007), available at http://littlegreenfootballs.com/weblog/?entry=25856_Unindicted_Co-Conspirators_Whining_Again&only; see also Patrick Poole, CAIR Fingered by Feds, FrontPageMagazine.com (June 8, 2007) (advocating that CAIR should be “abandoned by its friends in Congress, the media establishment, academia, and the federal government, due to the Department of Justice’s identification of CAIR’s terrorist ties”)."

That's harsh. It makes me think of Democrats calling for all Americans to boycott Fox News advertisers.

More good stuff

Via Professor Bainbridge, here is posed the question, which is better, UCLA or U.Va? I'm surprised that there could be a side-by-side without mentioning Kareem Abdul-Jabbar and Ralph Sampson, or maybe there was, in the line that said number of national championships - U.Va. 15, UCLA 100.

Via Instapundit, the celebrity guest star this week at CrimProf Blog is Tennessee's own Penny White, formerly of the Tennessee Supreme Court. I went to a Tennessee Trial Lawyers meeting in Johnson City a couple of years back where she was one of the speakers and everyone there was on a first name basis with her except for me.

David Giacalone takes issue here with Scott Turow's condemnation (no pun intended) in the ABA Journal of hourly billing.

In the criminal case against former Senate candidate Mark Tate, both sides are trying to take evidence from the past or present lawyers for the other side. Tate wants to use testimony from the Commonwealth's attorney who started the case before recusing himself, and the replacement prosecutor wants to take evidence from Tate's lawyer, who was a donor to the Tate campaign, all according to this article in the Post. Usually, you don't get to cross-examine the other side's lawyer under oath.

Here the Fredericksburg paper reports that someone stole an ATM machine, with a stolen truck.

Bunch of stuff

Here's the opinion of one of the bunch that's suing to have the transportation funding statutes overturned as unconstitutional.

Here is a story on the latest appeal in the Darryl Atkins case. It says in part: "

I read the latest ACLU brief from the California same-sex marriage litigation, which says in part: "If the California Constitution does not provide lesbians and gay men with the right to marry, then it will have failed them in the profoundest possible respects. It will tell them that they are not entitled to have their love and their commitment ratified by the state except in a pale simulacrum of marriage, known as domestic partnerships – a status that is not merely separate, but inexorably inferior in every way that matters most to them as human beings." The first response that comes to mind: if the California Constitution does not provide lesbians and gay men with the right to marry, then they lose the case, regardless of all that other.

The ACLU did get a good result in the case described here and here, brought on behalf of a couple of anti-Bush protesters, who got $80,000.

Frank Kilgore, media darling

Frank was in the Bristol paper lately for this article about the thirtieth anniversary of the Surface Mine Reclamation Act, and then again today with an editorial favoring state laws in Virginia to prohibit smoking in public places.

Maybe this is payback from Media General for the unfair piece from Jeff Shapiro way back when.

"Norfolk Four" article in Sunday Times Magazine

Here is a very lengthy article about the case of Joseph Dick, Jr., and others, who were allegedly involved with a murder in Norfolk, but now claim their innocence.

The story begins:

"At the Keen Mountain Correctional Center, a gray complex of poured concrete in rural southwest Virginia, Joseph Jesse Dick Jr. sits behind the thick glass pane of a prison interview booth like a specimen in an oversize shadow box. A man of delicate bearing with receding reddish brown hair, a sparse mustache and rectangular prison-issue glasses a bit wide on his long, gaunt face, Dick is here because he pleaded guilty to the 1997 rape and murder of his neighbor Michelle Moore-Bosko — a crime he now says he didn’t commit. And maybe he didn’t. Such proclamations of innocence are no longer surprising. The imprisoned man exonerated by DNA evidence or a belated confession by the actual killer or the emergence of a credible alibi witness is a narrative of increasing familiarity. But even in the upside-down world of wrongful convictions, the extravagant case of Joseph Dick and his supposed partners in crime is in a class of its own."

Michael Vick and Professor Berman

This article from the New York Times on today's events in the Michael Vick dog case cites Professor Berman:

"According to Douglas A. Berman, a professor of law at Ohio State University who writes the blog Sentencing Law and Policy, the sentencing guidelines for all the individuals involved are 'un-chartered' territory because dog fighting just became a federal felony in May."

Professor Berman has this post, where he says: "I would bet that defense lawyers are helping Vick see that he now could be facing a quite long sentence if he does not take a plea, but prosecutors may now already looking for a significant prison term even with a plea."

Interesting opinions from the Fourth Circuit

The most interesting opinion from the Fourth Circuit this week is unpublished, the case of Simo v. Mitsubishi Motors North America, Inc., before the panel of Chief Judge Williams and Judges Traxler and Shedd.

The bottom line is that the Court upheld a $6 million-plus verdict against the defendant in a rollover case, and the legal issues are many and interesting. The plaintiff was in a car wreck near Spartanburg. He was an 18 year-old freshman soccer player at Furman. HIs injuries ended his prospects for a soccer career. One area among many of the disputed expert testimony was that the District Court allowed the testimony of a former soccer pro/soccer agent to explain that the plaintiff would have earned between $3 million and $10 million as a professional soccer player, but for the accident. The Court also concluded on the plaintiff's cross-appeal that it didn't have to decide whether the District Court erred in granting the defendant's motion for judgment as a matter of law on punitive damages, because the case could not be retried on punitives alone without retrying the whole case. On this latter point, Judge Shedd dissented, concluding that it would be appropriate to remand the case for retrial on punitive damages.

The Court in Palmer v. City National Bank, an opinion by Judge Gregory, joined by Judge Niemeyer and District Judge Norton, dealt with the complicated issues of appellate jurisdiction over a District Court order remanding a case to state court, and the continued viability and constitutionality of the doctrine of "derivative jurisdiction" as a limitation on the subject-matter jurisdiction of the federal courts in removed cases. And, the Court concluded that yes it had appellate jurisdiction, notwithstanding the limitations of 28 U.S.C. 1447, under the Waco exception to the non-appealability of remand orders, and that yes, the district court's jurisdiction was limited by the doctrine of derivative jurisdiction to that of the state trial court, and therefore it acted correctly in dismissing the third-party plaintiff's claim against the appellee federal agency.

Got that?

In Tidewater Finance Co. v. Williams, the panel of Judges Motz, Duncan, and Niemeyer each wrote an opinion. Judge Motz wrote for the majority, joined by Judge Duncan who wrote a separate concurring opinion, and Judge Niemeyer dissented, and the issue was the effect on Chapter 13 petitions on the mandatory period in between successive filing of Chapter 7 petitions. And, the frequent filer won the case, with Judge Duncan noting in her separate opinion that maybe Congress ought to fix this problem.

Interesting W.D. Va. opinions

In Blankenship v. Mead Westvaco Corp. and William v. Mead Westvaco Corp., Judge Wilson granted the employer's motions to dismiss, concluding that the plaintiffs were attempting to state a private cause of action based on OSHA, the Occupational Safety and Health Act.

In Saucedo-Gonzalez v. United States, Magistrate Judge Urbanski addresses among other things the liability of the United States under the Federal Tort Claims Act for alleged excessive force applied to an inmate, without addressing what I thought was likely to be the dispositive issue, the exclusion in 28 U.S.C. 2380(h) of claims for assault and battery - but there is an exception to the exclusion for "law enforcement officers" and so perhaps the corrections officers are considered law enforcement officers. Maybe, however, it doesn't matter whether the corrections officers are considered law enforcement officers, because in the Fourth Circuit the other exception under section 2680(a) also applies, see Welch v. U.S., 409 F.3d 646, 651-52 (4th Cir. 2005), and so Judge Urbanski's opinion addresses section 2680(a).

In Calkins v. Pacel Corp., Judge Moon agreed with the defendants' argument that the officers and directors of a publicly-traded corporation cannot tortiously interfere with the corporation's contracts, rejecting the plaintiff's request for a hearing on whether the defendants were acting with the scope of their agency. Judge Moon also denied the plaintiff's claim for preliminary injunctive relief, where the relief sought was payment of money.

In Peebles v. Four Winds International, Judge Moon concluded that the W.D. Va. could have subject matter jurisdiction over a claim under a Florida consumer protection statute, notwithstanding the reference in the statute to bringing suit in state court. The Court noted, among other things: "The Supreme Court has made it clear, in numerous cases cited by Plaintiff, that state laws have no power to limit the jurisdiction of federal courts."

It's the ingredients that make it

One of my well-known obsessions is Bunker Hill chili, as described here.

Sure enough, the ten-ounce can we had on the shelf was on the Castleberry's recall list.

You'd have thought that all that sodium would have choked out the bacteria.

Like a river flows

Thirty years ago today, Elvis died, at the same age as a friend of mine's dad, which is the age I am now.

At my friend's wedding, the song his mom and dad danced to was this one:

On reality

HOWT blogs here about the recently-declared and widely-publicized thesis (as here in the NY Times) that life is just somebody's computer simulation, which brought to mind the study of the Bishop Berkeley (pronounced like Charles Barkley) back in my undergraduate days at the University, as he might suggest that we have no way of figuring out for sure that we aren't just figures in a computer simulation.

Or, rather, as suggested here:

"In his two great works of metaphysics, Berkeley defends idealism by attacking the materialist alternative. What exactly is the doctrine that he's attacking? Readers should first note that “materialism” is here used to mean “the doctrine that material things exist”. This is in contrast with another use, more standard in contemporary discussions, according to which materialism is the doctrine that only material things exist. Berkeley contends that no material things exist, not just that some immaterial things exist. Thus, he attacks Cartesian and Lockean dualism, not just the considerably less popular (in Berkeley's time) view, held by Hobbes, that only material things exist. But what exactly is a material thing? Interestingly, part of Berkeley's attack on matter is to argue that this question cannot be satisfactorily answered by the materialists, that they cannot characterize their supposed material things. However, an answer that captures what exactly it is that Berkeley rejects is that material things are mind-independent things or substances. And a mind-independent thing is something whose existence is not dependent on thinking/perceiving things, and thus would exist whether or not any thinking things (minds) existed. Berkeley holds that there are no such mind-independent things, that, in the famous phrase, esse est percipi (aut percipere) — to be is to be perceived (or to perceive)."

Yeah, this is the stuff I got for what Dad paid for my tuition.

Outside the strike zone and the scope of employment?

In this post, I quoted Judge Williams' opinion in the famous case of Simmons v. Baltimore Orioles. Judge Williams recalls that at the time, it was recognized as an Opinion of the Week, by West Publishing.

Now, the question has been raised whether the club could cite Simmons in defense of any civil claims arising out of the Jose Offerman incident.

The $63,000,000,000 billion pro se lawsuit filed by a prisoner against Michael Vick

Here is a copy of the handwritten complaint, on Foxnews.com.

The complaint concludes: "Michael Vick needs to stop physically hurting my feelings and dashing my hopes."

There's quite a few Michael Vick fans who might take the same view, on that narrow point.

Today's interesting stuff

I liked this article about the bell in the courthouse for Bland County.

Here is the opinion from U.S. v. Mooney, the gun case won by a third-year student from Wake Forest. Like Mr. Mooney's counsel, I had previously understood that there were no defenses to a gun case. In the first federal criminal trial I ever saw, the hard-hitting questions from the defense were something like this: "So, Mr. ATF agent, what evidence have you really got that this gun was interstate was in interstate commerce, besides the fact it says 'Made in Germany' on the handle?"

This article by Professor Dorf says the Twombly decision is a big deal, but this comment on the article says Dorf is wrong. The question is whether Twombly will make it harder for plaintiff's counsel to plead a case in federal court that will withstand a motion to dismiss for failure to state a claim.

On Hiram Lewis

Today I got an e-mail asking that I contribute to the campaign of Hiram Lewis for Attorney General of West Virginia.

He would be a change from Mr. McGraw, I expect, for better or worse.

The big Roanoke civil case against abusive driver fees

Here is the complaint in the civil case some Roanoke lawyers have filed to get the abusive driver fee scheme declared unconstitutional.

I thought class actions were generally not recognized in Virginia state court, but they are relying on some outlier exception. I saw here that they were relying on the dicta from Judge Jones in the Wise County landfill case, with which I disagreed at the time.

The complaint raises the unlawful tax issue. I have ruminated before on the question of whether there is a way under Virginia law to get a tax refund from an unconstitutional tax.

You'd think they'd have to raise these issues in the criminal case, and lose, before they could bring some kind of glorified section 1983 case. The plaintiff might be innocent.

I wouldn't be surprised if some or all of the relief sought is barred by sovereign immunity.

On bad legal arguments

Here at Prawfsblawg they are collecting favorite bad legal arguments.

One day sitting in the Fourth Circuit, I heard an exchange that went something like this:

Lawyer: ". . . Besides, that's not my only argument."

Member of the panel: "It better not be your only argument."

Alas, I've forgotten the issue.

I can remember weird evidentiary objections at trial better than weird arguments in briefs.

One of the strangest is retold here.

One lousy settlement

"Plainly and simply, this was a scheme to defraud. It was a case of unchecked avarice coupled with a total absence of shame on the part of the original lawyers. The attorneys manipulated the legal system for their own pecuniary gain and acted against their clients’ interests by attempting to deprive them of monies to which they might otherwise be entitled. More unethical and reprehensible behavior by attorneys against their own clients is difficult to imagine."

Cortina, J., from the Florida Court of Appeals, concurring in Masztal v. City of Miami.

Must not have been a no-brainer after all

VLWBlog is reporting here that the circuit court judge in Henrico County has upheld the abusive driver fees.

Retrospective on the first women to graduate from VMI

The Roanoke paper has this interesting story, which says among other things:

"A decade ago, those in favor of keeping VMI all-male predicted that the presence of women would be the demise of the nation's oldest state-supported military school.

VMI today is in the midst of a $300 million capital campaign to renovate its older buildings and update its classrooms to attract the next generation of male and female cadets. It has a strong alumni association and has received millions of dollars in endowment funds to help with efforts such as a new leadership and ethics center that broke ground this summer.

The massive building upgrades include new athletic fields and an addition to the barracks, but won't change the cadet lifestyle of sleeping on fold-up wooden cots in rooms without air conditioning and with bathroom facilities down the hall.

As for the overall acceptance of women, there are still those who think women don't belong at VMI or in the military."

Assistant Commonwealth's attorney files defamation suit against couple he prosecuted

This story says a Southwest Virginia prosecutor has filed suit seeking money damages for defamation by a couple he prosecuted, who put up negative comments about him on their website.

Looking at the Fourth Circuit

Here's sort of a whacky take on "Fourth Circuit politics." Read all the way to the comments.

It is, however, hard to reject the basic premise of the post, that the goofiness of people acting politically is what has allowed the number of vacancies on the Court to reach such a high figure.

Virginia county boundary changes from the beginning

This page shows, among other things, that at in 1776 nearly all of today's Lee, Scott, Wise, Russell, Dickenson, and Buchanan counties were part of Washington County.

On the history of the Blue Ridge Parkway

Here is a book review from the Charlotte paper of Super Scenic Motorway: A Blue Ridge Parkway History.

In the neighborhood Monday morning

A press release from the AG's office:

"Attorney General Bob McDonnell will visit the Bristol, Virginia fire department tomorrow, Monday August 13th at 9:30AM. The Attorney General will tour the station, and meet with local firefighters, as well as Chief Walt Ford. He will be available to speak to the press at this event about public safety in the Commonwealth, and all members of the media are invited and encouraged to attend."