Blast from the past

The new quarterback recruit who just signed to play at Virginia Tech had Jim Cantafio as his high school coach - as did I. Coach Cantafio has won more than 250 games since he started at the old high school in 1980.

New takes on the judicial conference

This year, I tried to explain to Erin that we were going to an event that would include the Chief Justice of the United States Supreme Court. To make sense of it to her, I said that "he is like the Lebron James of judges." She got my meaning.

Jill asked me what was the hashtag on Twitter for the event. I didn't know. I don't think anyone was tweeting from the Greenbrier, although the AP article on the Chief Justice's remarks showed up while we were having lunch a few minutes after the conference had ended.

Keeping score

In this week's opinions, the Supreme Court

1. Somewhat cracked down on affirmative action, in the Fisher case (7-1 vote),

2. Somewhat made it more difficult to employee plaintiffs to win in Title VII cases, in the Nassar case (5-4), and the Vance case (5-4),

3. Somewhat made it more difficult to sue drug manufacturers for bad products, in the Bartlett case (5-4),

4. Somewhat struck down the Voting Rights Act in the Shelby County case (5-4),

5. Somewhat cracked down on impact fees, in the Koontz case (5-4),

6. Somewhat cracked down on the Indian Child Welfare Act in the Baby Girl case (5-4),

7. Cracked down on DOMA, in the Windsor case (5-4),

8. Punted on Proposition 8 in the California case (5-4),

9. Overturned an extortion conviction in the Sekhar case (9-0).

What do all these cases have in common? I have no idea, other than that Justice Kennedy wins again. Probably the right won more than it lost - the impact fee case, the voting rights case, the products liability case, the Title VII cases, and the affirmative action cases sound like big victories for the right. Perhaps the experts will explain it all this weekend at the Fourth Circuit Judicial Conference, which you can watch live on C-SPAN on Saturday morning. The conference is at the Greenbrier as in 2011.

The Virginia Constitution of 1902 and the Voting Rights Act

The Virginia Bar Association is a product of the Progressive era. Forward-thinking lawyers joined together to promote the highest ideals of the profession. Many of the same lawyers who were leaders in the Bar Association were also delegates to the Virginia Constitutional Convention of 1901.

The Virginia Constitution of 1902 contained some remarkably progressive elements - for Virginia. It established the State Corporation Commission as an independent rate-setting entity for the railroads and public utilities. It incorporated an express Double Jeopardy clause.

It also sought to take the right to vote away from black Virginians. In this effort, the new constitution was a success. Black voting was suppressed for decades. At the distance of barely more than 100 years, it is troubling to think that the best and the brightest of Virginia's lawyers worked so carefully and intentionally to prevent black voters from voting.

The Twenty-Fourth Amendment was adopted in 1964, prohibiting the poll tax in federal elections. The Supreme Court did not rule until 1966, in a Virginia case, that the poll tax was illegal as a violation of Equal Protection in state elections. Congress passed the Voting Rights Act of 1965.

Yesterday, the Supreme Court held in the Shelby County case that the premises of the Voting Rights Act could no longer support the imposition on certain states of the burden of pre-approval for all voting law changes. The commentary I have read is full of the view that racism remains a fact of life for millions of Americans.

There has been a reversal, however, between 1901 and the attitudes of the legal elite. I have never met a lawyer who would say in private the outrageous things that Virginia's best lawyers were saying proudly on the record in 1901. Black voter turnout exceeded white voter turnout for the first time in 2012. Whether the Chief Justice got it right or wrong in his conclusions, I agree that a fundamental change has taken place since 1902, that is not going to change back. There will not ever be another Virginia constitutional convention for the express purpose of keeping racial minorities from voting.

New bankruptcy judge for the W.D. Va.

In today's email:

"The United States District Court and the United States Bankruptcy Court for the Western District of Virginia take great pleasure in announcing that Paul Markham Black has been designated by the United States Court of Appeals for the Fourth Circuit, subject to satisfactory completion of standard background checks, to succeed William F. Stone, Jr. as United States Bankruptcy Judge for the Western District of Virginia at Roanoke, Virginia. Mr. Black, a native of Roanoke who graduated from Northside High School, received his undergraduate degree from Washington and Lee University in 1982 and his law degree from the T. C. Williams School of Law of the University of Richmond in 1985. He then served as law clerk to the Honorable Blackwell N. Shelley, United States Bankruptcy Judge for the Eastern District of Virginia at Richmond. After practicing law in Richmond for several years with the firm of Mays & Valentine, he returned to Roanoke in 1991 to join the law firm of Melchionna, Day, Ammar & Black, P.C. Since then, his practice has involved representation of clients in the United States District Court and United States Bankruptcy Court in the Eastern and Western District of Virginia as well as numerous Virginia state courts. Currently, Mr. Black is a member of the firm of Spilman, Thomas & Battle, PLLC in Roanoke, where he is co-chair of the firm's bankruptcy and creditors' rights practice group. Since 2007, he has served as a member of the Virginia State Bar Disciplinary Board. Mr. Black lives in Roanoke, Virginia with his wife. They have three daughters. The term of the appointment will be fourteen years, and Mr. Black is expected to take the bench during the latter part of this year or the beginning of 2014."

Why I like RealClearPolitics

The No. 1 reason why I look at the RealClearPolitics web page almost every day is the juxtaposition of links to opposing or somewhat opposing views, such as these:

Item 1: Obama Readying Emissions Limits on Power Plants. This story describes how the Obama Administration is working as quickly as it can on the complicated task of promulgating regulations that will curb carbon dioxide emissions from existing power plants.

Item 2: Climate Expert von Storch: Why Is Global Warming Stagnating? This worthwhile interview includes the frank acknowledgement by one of the leading climate change experts that if global warming does not pick up again in the next five years, after fifteen years of little change despite increasing carbon emissions, the scientists will have to acknowledge, without abandoning their general thesis that man-made emissions affect the climate, that their models were wrong and recognize that either they have overestimated the connection between man-made emissions and global warming or underestimated the effects of other natural phenomena that affect the weather.

Over at RealClearEnergy, there was Item 3: King Coal Leaves America for Europe, which begins with reference to the fact that U.S. coal exports have reached record levels, and concludes that "[g]reen energy policy has been a catastrophic failure in Europe, hampering the continent’s global competitiveness without making the continent any greener."

On Ephrata

In Teleguz v. Pearson, the petitioner has raised as one of the factual issues in support of his actual innocence that a witness gave testimony that the petitioner killed a man in Ephrata, Pennsylvania, but in fact there was no such murder. Judge Jones ruled in the opinion that since it was stipulated that there was no such murder, there was no need for discovery on that point.

Apropos of nothing, I have been to Ephrata many times, it is still home of the Hilltop Restaurant, where my high school girlfriend's mom asked me thirty years and a couple of months ago, "you're not going to ask her to the prom, are you?"

Hearsay in the W.D. Va.

Judge Jones of the W.D. Va. has written two recent opinions in which important hearsay evidence was kept out of the case.

In Electro-Mechanical Corp. v. Power Distribution Products, Inc., the Court excluded the minutes of a meeting between the plaintiff and a potential customer, finding that the substance of the document along with the timing of when it was created "indicated a lack of trustworthiness," in the language of the business records exception to the hearsay rule, FRE 803(6).

In U.S. v. Benko, where Mr. Benko is accused of lying about something someone else did, and that someone else made a statement that he never did it, Mr. Benko is out of luck in trying to get that evidence admitted because the declarant has invoked the Fifth Amendment and refused to testify, the Court cannot require the government to give him immunity and make him testify, and the out-of-court statement is not admissible as a statement against interest under FRE 804(3) because the statement lacked "corroborating circumstances that clearly indicate its trustworthiness."

These opinions excluding highly relevant evidence because it was too obviously self-serving to the point of unbelievability are a far cry from what Magistrate Judge Roy Wolfe described to me as the only evidentiary rule of the Western District, "let it in for what it's worth," which I heard from the bench only once in an actual case.

On FOIA and the Attorney General

My old blog friend Waldo Jaquith has been in the news lately in connection with the claim stated on a response he received from the Virginia Attorney General that Virginia's Freedom of Information Act may not apply at all to the Attorney General, citing the 2011 decision by the Virginia Supreme Court in Christian v. State Corporation Commission. In that case, the Supreme Court gave three reasons why, despite the broad definition of "public body" in FOIA, the State Corporation Commission was not included. One of those reasons was the idea that the SCC derives its authority to act from the Virginia Constitution, rather than the legislature, suggesting sort of a separation-of-powers issue. The Court cited Connell v. Kersey, a 2001 case in which the Court held that a Commonwealth's Attorney was not subject to FOIA, explaining that the language of FOIA refers only to "entities to which responsibility to conduct the business of the people is delegated by legislative or executive action. By contrast, a Commonwealth's Attorney derives his or her authority from the Constitution." Along somewhat similar lines, the Court held in Taylor v. Worrell Enterprises, that the Governor could not be required by legislative act to provide certain records.

Interestingly, the General Assembly took action to overrule Connell, by chapter 393 of the 2002 Acts of the Assembly, which amended the definition of "public body" with the addition of this sentence: "For the purposes of the provisions of this chapter applicable to access to public records, constitutional officers shall be considered public bodies and, except as otherwise expressly provided by law, shall have the same obligations to disclose public records as other custodians of public records." In this act, the General Assembly expressly declared its intent to "address the recent Virginia Supreme Court holding in the case styled Connell v. Kersey, which held that attorneys for the Commonwealth are not 'public bodies' as defined in the Freedom of Information Act (§ 2.2-3700 et seq.), by clarifying that the Freedom of Information Act (FOIA) applies to constitutional officers and providing an exemption for attorneys for the Commonwealth." It is not obvious to me how the separation-of-powers rationale from Connell survives this amendment as to whatever is included within the term, "constitutional officers." In cases such as Blair v. Marye, 80 Va. 485 (1885), the Supreme Court has explained that the Attorney General is a "constitutional officer." In addition, the Supreme Court has already held that the Virginia Constitution "unequivocally permits the General Assembly to prescribe the duties of the Attorney General." Wilder v. Attorney Gen. of Virginia, 247 Va. 119, 127, 439 S.E.2d 398, 403 (1994). Unlike the SCC, FOIA includes several exemptions that expressly reference the records of the Attorney General.

In fact, the Attorney General never used the legal argument that his office is not subject to FOIA to avoid responding to FOIA requests, and has now abandoned that argument altogether. The Christian case provided a good-faith basis for raising the point, but it is not obvious that the weight of authority would place the Attorney General in the position of the SCC as opposed to other "constitutional officers."

The memorial for Judge Williams

Thanks to Judge Pam Sargent and all others who made possible the memorial yesterday afternoon for Judge Williams, and to Chief Judge Conrad, Judge Sargent, Judge Birg Sergent, Ronnie Montgomery, Joe Wolfe, David Harless, Randy Ramseyer, Jack White, and Don Williams for their words. I was glad to get a chance to speak about the Judge once more.

What the Supreme Court said about whether a tomato is a vegetable

Last night I caught the tail end of the seed library presentation at the library in Abingdon and one of the seed people said that a tomato is botanically a fruit but the Supreme Court has ruled that it is a vegetable. So, of course, I had to look up the case, which is Nix v. Hedden, 149 U.S. 309 (1893). The issue before the Court in Nix was whether the tax collector for the Port of New York could collect a federal tax on imported "vegetables in their natural state" with respect to imported tomatoes, where the tax did not apply to "fruit." The opinion was written by Justice Gray, who preceded Justice Holmes on the Court and had a similar background as a well-to-do Bostonian who had served on the appeals court in Massachusetts.

Justice Gray wrote that the terms "fruit" and "vegetables" did not have any special meanings, that the Court was bound to take judicial notice of their ordinary meanings, that dictionary definitions were not evidence but aids to the "memory and understanding of the Court" regarding the ordinary meanings, and that while "[b]otanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas," nevertheless, "in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert." And so, a tomato is a vegetable, because of how we talk about it when we eat it, regardless of what the scientists say - and the tax collector wins. Surely, my old professor David Yalden-Thomson would have approved of this analysis, as he believed the most profound sentence ever written was that "the meaning of a word its use." The Nix case is sometimes cited for its use of dictionaries.

Referencing the Court's decision, this article makes the case for tomatoes as dessert. If tomato tarts and tomato yogurt took the notion by storm, would a tomato then become a fruit as that term was used in subsequent legislation? I wonder. Pictured below are what I think are some of what are my dad's favorite tomato, the Pink Lady.

On joining up with Bearing Drift

Norm Leahy has included me in the latest crop of new contributors to Bearing Drift, describing me as "[o]ne of the grand old men of the Virginia blogosphere." As long as I have been a blog writer, I have been a blog reader, and the Bearing Drift contributors include several grand old men and women of the Virginia blogosphere whose words I have pondered for many years. Thank you for the invitation.

On the black dog syndrome

I have read from time to time of the Black Dog Syndrome, which is probably a myth. It is interesting to think about why would there be a preference for or against a dog of a particular color, and how could it ever be proven. This topic is also of interest because of the three dogs I have owned since 1991, Ladybug (2010 - present), Chrissy (1991 - 2006), and Jenna (2007-2008).

Comparing law and science

I have been studying this article titled "The Law of Physics & the Physics of Laws," by Judge Kelsey, published in 2012 in the Regent University Law Review, in which he endeavors to "rake through the ashes of science (as well as some of its hot coals)" in the pursuit of "symmetries that reinforce our understanding of the law."

In the first section, titled "An Underlying Order," he points to the historical view of common law scholars that the law like sciences derived from universal truths, that were capable of being discovered incrementally through the process of deciding individual cases. It brings to mind the concept from Revolutionary times, that all men "are endowed by their Creator with certain unalienable Rights," that were natural laws that preceded the institutions of the legislatures and the courts. It also makes me think of the dismissal by Justice Holmes and other "legal realists" of the validity of the quest for natural law.

The second section makes interesting comparisons between the physical laws of inertia and the doctrine of stare decisis, and also between Newton's law of motion and the adversary system. He suggests that judicial precedents have "mass," that consist of "the strength of judicial consensus on the truth of the precedent and the longevity of its journey over time," that must be overcome for the law to change, and that absent sufficient force for change to overcome this mass, the precedents will "simply move from age to age along their original trajectories." He also suggests that the adversary system in its reliance on the concept that "truth can best be found in the competing contest between opposing forces" corresponds with the Newtonian concept that "all forces in come in pairs."

The third section compares the difficulty of categorizing and determining the truth, in law and in science. He compares the difficulty of scientists in characterizing the nature of light with the challenge for lawyers of drawing the line between law and equity - a task which continues into the modern age, for example, where there is an issue of the right to a jury trial. He concludes with the problem of "doubt," in science and the law, which seems to me the most interesting of these several points - how do we overcome the problem of knowing what is true, when the quest for truth itself may obscure the truth? The priority of the opposing parties is to win the case, with the result that " lawyers and jurists alike have known for centuries that irrefutable truth is almost always, if not invariably, garbled by the exercise of discovering it."

This article seems like the introduction to a seminar on the philosophy or history of law, the sort of class that I signed up for whenever I could, back in the day, when I had professors like John Simmons and Charles McCurdy.

On launching out into the deepest waters

A few days ago, Mitt Romney gave the commencement address at Southern Virginia University, as shown here, and advised the graduates to go out into the deep waters, like Jesus instructed Peter and the other fishermen. In particular, he told them to get married and have children. I can't say that I was trying to keep up with Romney, but I jumped into the deep end in 2011 and married Jill and started living with four step-children, three of them girls. My biggest regret to date is that the oldest - the prom girl in red with her old step-dad - will be gone from our house all too soon, but then again Romney in the same speech declared that is the "new American Dream," getting the children out of the house you own. It has been a few years since I last posed with a high school senior.

On whether a man be an idiot or not

In Ingram v. Com., the Virginia Court of Appeals in a published opinion by Judge Kelsey, joined by Judge McCullough and Senior Judge Haley, disposed of Mr. Ingram's claim that he was entitled to a jury trial on the claim that he should be required involuntarily to undergo psychiatric treatment. In reject Ingram's claim, Judge Kelsey noted the following:

"Though wholly unrelated to claims for monetary damages, the ancient common law writ of 'de idiota inquirendo' authorized juries to 'inquire whether a man be an idiot or not' and, if so, to transfer 'the profits of his lands and the custody of his person' to the king or his designee. 1 William Blackstone, Commentaries on the Law of England *303. A similar writ could be issued against a 'non compos mentis,' described in the common law as a mere 'lunatic' who 'by disease, grief, or other accident, hath lost the use of his reason' yet still has 'lucid intervals.' Id. at *304.

These common law writs, however, have little in common with a Code § 37.2-1101 proceeding."

Many is the case in which it might have been asked whether I or other counsel or a litigant or witness whether he "be an idiot or not."

Today Provo, tomorrow the world

This article explains how Google plans to take over wireless internet access from the telcos, one Google Fiber home at a time.

On Judge Lynn Brown

The Johnson City paper has this entertaining story on the retirement of Judge Lynn Brown from Northeast Tennessee.

One of those stories told was this: "Another memorable case was the two murder trials of Steven Allen Jones, who was convicted both times . . . . Jones became enraged after the second conviction and Brown ordered him gagged. The bailiffs used defense attorney Gene Scott’s spare tie as the gag."

On backdating

I heard of a case not too long ago where someone raised a fuss about a transaction where documents were "backdated." Backdating is surely neither good nor bad in itself without more facts, such as the intent to deceive or the opposite. Dealing broadly with this topic is this interesting article published in the ABA's Business Lawyer in 2008, which you can download for free from SSRN.

On appeals from district court to circuit court

With the elimination of the Circuit Court's removal jurisdiction and the increased jurisdictional limit for actions in General District Court, it seems like more complicated cases get tried in District Court than was the case when I was a young lawyer and anything with much complexity was removed. Clients of lesser means have no choice but to fight out the case in District Court, because a losing defendant generally cannot appeal without posting a bond as required by Va. Code 16.1-107.

We have seen from time to time, for example, the circumstance where the plaintiff in District Court sues more than one defendant. What is the effect of an appeal if the plaintiff gets a judgment against one defendant but not the other? Is it possible, for example, for the plaintiff to appeal as to the one defendant but not the other? The answer in the opinions I have seen is no, the nature of the de novo review in Circuit Court means that the whole case with all parties is appealed, and the appellant must take the bitter with the sweet and face retrial as to every issue and every party. See Khan v. Washington, 74 Va. Cir. 95 (City of Alexandria Cir. Ct. 2007) ("the appropriate circuit court has appellate jurisdiction over all the parties to the pending case"); Hansen v. McFarland, 27 Va. Cir. 383 (City of Richmond Cir. Ct. 1992) ("an appeal by any party of a district court decision serves to give an appropriate circuit court appellate jurisdiction over any other party against who such an appeal is perfected"); Nanney v. Navy Car Storage, Inc., 7 Va. Cir. 397 (City of Norfolk Cir. Ct. 1969) (defendant "is entitled not only to a review of plaintiff's judgment against it but also the finding of the court in favor of the [other] defendant . . . "); Grinnell Fire Protection Systems Co. v. Sills, 3 Va. Cir. 489 (City of Alexandria Cir. Ct. 1979) (holding that the appeal from General District Court "brings the entire case and all of the defendants" before the circuit court).

Suppose the plaintiff decides the appeal was a mistake? Claims before a Circuit Court for de novo review on appeal from a District Court can be non-suited, but then can only be refiled in the same Circuit Court. Davis v. County of Fairfax, 282 Va. 23, 710 S.E.2d 466 (2011). The effect of the nonsuit would be that the district court judgment is lost, as if the case had never been filed. He can withdraw his appeal, subject to the provisions of Va. Code 16.1-106.1. Section 16.1-106.1 deals separately with appeals from general district court and from juvenile and domestic relations district court, but the gist is that the circuit court is supposed to dispose of the appeal consistent with the district court judgment.

Suppose a defendant brings the appeal? A defendant cannot take a nonsuit. “Nonsuit remains,” the Supreme Court has explained, “distinctly a weapon in the arsenal of a plaintiff.” Trout v. Commonwealth Transp. Com'r of Virginia, 241 Va. 69, 73, 400 S.E.2d 172, 174 (1991). An appellant who is not a plaintiff cannot nonsuit an appeal. See Anonymous C v. Anonymous B, Record No. 2232-09-2, 2011 WL 65957 (Va. Ct. App. Jan. 11, 2011). The defendant who appeals to Circuit Court can only seek to withdraw the appeal.