Virginia conference on local government and telecommunications

The Virginia Association of Telecommunications Officers and Advisors is holding its first annual conference April 7-8 in Williamsburg - and I'll be there, and so to the loyal readers (and you know you are), more blogging next week. On the program among others are Jim Baller of the Baller Herbst Law Group and Nicholas Van Eaton of Miller & Van Eaton. Jim Baller represented the City of Bristol in its successful lawsuit against the Attorney General, which resulted in this opinion in which Judge Jones of the W.D. Va. declared that the Federal Telecommunications Act preempted a Virginia statute precluding localities from providing telecommunications.

EEOC finds employment discrimination at state school in Newport News

The president of Christopher Newport University in Newport News took issue with the findings of EEOC investigators who concluded that two school employees were victims of racial harassment, as reported here, which relates that "CNU President Paul Trible said the agency's findings weren't valid, and said he plans to take no action in response to the finding except fighting the case in court if necessary."

Virginia Tech paper says "experts refute" the necessity of the Board of Visitor's ending policy on sexual orientation

The Collegiate Times in Blacksburg has this report, which claims that there is no justification for the Board of Visitor's elimination of policies protecting against discrimination based on sexual orientation.

Rightly or wrongly, the BOV's move has some foundation in Virginia law. Attorney General opinions have consistently held that public bodies in Virginia have no authority under Virginia law to promulgate rules against discrimination based on sexual orientation. In November 2002, Attorney General Kilgore ruled in this opinion that the Fairfax County school system has no authority to amend its discrimination policy to include sexual orientation. In 1986, Attorney General Baliles concluded that the City of Alexandria did not have authority to prohibit discrimination on the basis of sexual orientation in the city's employment practices and in the award of government contracts. In 1993, Attorney General Rosenthal opined that that Arlington County could not prohibit discrimination based on sexual orientation, except to the same extent it is prohibited under general law. Also in 2002, Attorney General Kilgore ruled that a statutory amendment would be required to authorize the Fairfax County Human Rights commission to prohibit discrimination based on sexual orientation.

These decisions are grounded in the strict Dillon rule tradition in Virginia, which lays the powers of government at the feet of the legislature. The Attorneys General have never concluded that the legislature could not allow protections for sexual orientation, but that it has not, and without that authority Virginia's government agencies and institutions are powerless to act.

The Tech article quotes one expert as saying, however, that "university policies routinely go over and above the laws approved by Virginia’s General Assembly," citing as examples that "universities have policies prohibiting cheating, allowing grades to be issued and causing students to be suspended for poor academic performance, he said, all rules that go beyond the laws set by the government." Those are not very good examples - most academic policies probably are based on some statutory authority, I suspect, such as this statute describing generally the powers of the Tech Board of Visitors.

The problem of the Dillon rule is not limited to human rights problems - Judge Jones of the W.D. Va. applied the Dillon rule of strict construction in concluding here last December that the City of Bristol had no authority to operate a cable television system. "When doubtful, the question of whether a municipality has a particular power must be answered in the negative," Judge Jones explained. The bottom line is that the only safe course for any government agency in Virginia to do something new is to obtain explicit legislative authority.

The Tech article goes on to describe the financial effects of the policy change:

"The removal of sexual orientation from the anti-discrimination policy is already having a negative impact on contributions to the university, said Tom Brobson, Tech’s associate director of corporate relations — one of the university’s chief fundraisers.

The administration has been inundated with letters from alumni outraged at the board’s action, many who are threatening to withhold donations unless sexual orientation is put back into the policy, Brobson said.

Among the withheld donations have been several major gifts of about $100,000, he said. Some donors have even demanded their contributions be given back.

'These alumni are concerned about the state and the future of the university,' Brobson said.

Also, several major corporations that have traditionally given generously to Tech have expressed displeasure, possibly causing corporate giving to be hindered as well, he said."

As the paper noted in a separate article, the Board may reconsider its controversial decisions at a special meeting to be convened on Sunday.

William & Mary president interprets rankings to mean more money is needed

Timothy Sullivan, president of the College of William & Mary, said here the improved rankings of the law school and the education are evidence of how more money is needed "to sustain this positive development that means so much to our students." Sullivan was the law school dean and taught first-year Contracts in my day.

WV doctor claims state's trial lawyers in conspiracy against physicians

In West Virginia, a circuit court refused to dismiss a doctor's lawsuit against the West Virginia Trial Lawyers Association and its president for conspiracy to injury the doctors of West Virginia, as reported here. The doctor is proceeding pro se, and was quoted as saying "My life has been ruined by the activities of the trial lawyers."

Former Wythe County judge profiled - a Virginia gentleman

The Wythe County paper recounts here the life and times of Judge Roy William Arthur, who died this week at age 85. He served as mayor of Wytheville during the late 1940s and early 1950s, including a time when the town was quarantined during an outbreak of polio, and later served as circuit court judge . The article quotes this admonition from a speech by Judge Arthur, addressed to the youth of Wythe County (and elsewhere):

"In the speech, he quoted the words of a Colorado Juvenile Court judge. 'The world does not owe you a living,' Arthur told them. 'You owe the world something. You owe it your time and energy and talents so that no one will be at war or in poverty or sick or lonely again….In plain words: Grow up! Quit being a crybaby, get out of your dream world, develop a backbone, not a wishbone, and start acting like a man, or a lady!'"

Rear-ended by IRS agent, claimant can't prove negligence

In this opinion the Fourth Circuit affirmed judgement for the United States in a Federal Tort Claims Act case based on the alleged negligence of an IRS agent whose vehicle crashed into appellant's car on the interstate after appellant braked sharply to avoid a ladder that had falled off a truck in front of him.

State-federal dispute over regionalization of electricity distribution may be headed for federal court

FERC's approval of allowing Dominion Power and American Electric Power subsidiaries to join in the regional power system, after the legislature passed a statute prohibiting participation in the regional group by Virginia's power producers, means it is more likely that the issue will end up in federal court, as reported here. A spokesman for AEP said "This is a complicated, complex issue that puts us in the middle of a jurisdictional dispute between the federal regulators and the state regulators."

No era of good feelings following close of legislative session in Richmond

Virginia's Democratic Governor and Republican-majority legislators "are in some danger of having very bad relations," as described in this Washington Post article titled "In Va., Cordiality Shown The Door."

Illinois state senate refuses to bail out tobacco settlement funds

As reported here, the Illinois senate refused to pass new legislature to alter the bond requirement for Philip Morris to appeal the $12 billion judgment entered against it, despite arguments that other states including Virginia will suffer if the tobacco company has to post the bond and therefore cannot make its tobacco settlement payments.

Tazewell murder defendant takes the stand and claims "I was set up"

In Tazewell County, the defendant testified for himself at the end of the murder trial, blaming the victims, as reported here.

FERC not sure about "if you build it, they will come"

The Federal Energy Regulatory Commission ("FERC") wants Dominion Power to answer more questions about the need for its proposed Greenbrier pipeline, since some proposed power plants that would have used gas from the line have been cancelled, as reported here.

Making budget sense of the U.S. News grad school ratings

This Roanoke Times article cites declines in the ratings of some of Virginia's graduate school programs, and quotes a Virginia Tech official as saying that cuts in government spending must be having an effect, which fails to explain the numbers for U.Va. Law (as it doesn't take state money anymore) and William & Mary Law (which went up).

The law school rankings can be found here.

One arrest, many claims, most dismissed

Judge Wilson of the W.D. Va. issued this opinion earlier this week, disposing of most of the constitutional claims of a woman who was arrested for driving without a license and proceeded to sue everyone from the arresting officer to the Circuit Court judge, and whose claims include a request for an injunction against Virginia State Police checkpoints. Judge Wilson dismissed the judges and the prosecutors as absolutely immune. He dismissed the "deliberate indifference" and "cruel and unusual punishment" claims against the state troopers and the Sheriff's Department for failure to state a claim, and likewise threw out the RICO, conspiracy, and injunction claims. The court took under advisement the excessive force claims against the two troopers.

The claim of deliberate indifference is that her jailers in Roanoke refused to let the plaintiff remove her contact lenses. The Court noted that neither the troopers nor the county jail could be responsible for what happened to plaintiff in the city jail. The judge decided to look at the videotape of plaintiff's arrest before deciding whether she could have an excessive force claim, or whether the officers might be entitled to qualified immunity - that is, if a reasonable officer could have believed that the level of force used by defendants would not violate the plaintiff's constitutional rights.

Give me your tires, your stuff you don't want any more, your wretched refuse

According to this report, Virginia is "Ranked Second in Top Trash-Importing States."

Congressman Boucher stands alone among Democrats on gun bill

This report indicates that the House Judiciary Committee forwarded the bill prohibiting lawsuits against gun manufacturers to the full House, on a party-line vote with the exception of SW Va's Rick Boucher, the lone Democrat who also voted for the lawsuit ban.

In the period 1989-1998, Congressman Boucher was one of the leading recipients in the House of campaign contributions from the National Rifle Association, as shown here.

Tell General Franks to check his numbers

As reported here in GamblingMagazine.com, Virginia law allows an extension of the deadline for claiming lottery winnings to a serviceman who can show he or she missed the deadline because of military service requirements.

On April fooling - better late than never

This link contains a list of the 100 Greatest April Fool's Hoaxes of all time, from the Museum of Hoaxes.

This link is to a remarkable essay simply titled "On Bullshit" by Harry Frankfurt of Princeton University, professor emeritus of Philosophy.

This is not to suggest a connection between these topics and the profession of law, in SW VA or elsewhere.

First person account of oral argument before Fourth Circuit in Microsoft case

At this link you can read a description of oral argument in the Microsoft injunction case, before a panel of Judge Emory Widener, Judge Paul Niemeyer, and Judge Roger Gregory. The author writes that Judge Niemeyer asked most of the questions and made no secret of his views of the case: "Although Judge Widener presided over today’s hearing, for all intents and purposes this was Judge Niemeyer’s show. Aside from two brief interjections from Judge Gregory, Judge Niemeyer monopolized—no pun intended—this morning’s oral argument. He was particularly belligerent towards Sun’s counsel, and by the end of the one-hour hearing, I got the impression that Judge Niemeyer planned to catch a train to Baltimore and physically beat Judge Motz with a shovel for issuing his injunction in the first place."

Reuters published this account of the same argument, noting that Judge Niemeyer, "who dominated questioning during an hour of presentations from both sides, also criticized the legal basis of the injunction issued late last year by U.S. District Judge J. Frederick Motz in Baltimore."

This eWeek article described the argument as "Harding vs. Kerrigan revisited," quoting this exchange:

Judge Gregory: "Your argument is Microsoft is being found guilty of discharging a firearm in the direction of human beings, but it's a slow-moving bullet and now we have to see where it lands?"

Counsel for Sun: "Yes, and Microsoft was shooting at Sun's knee. What Microsoft did is what Tonya Harding did."

Judge Niemeyer: "But what you did is asked for a remedy to fix her elbow and not her knee."

David Tulchin of Sullivan & Cromwell argued for Microsoft, Lloyd Day from Cupertino argued for Sun.

Statement of purpose requirement eliminated from online records law

The General Assembly accepted the Governor's recommendations to eliminate a requirement that persons requesting government records online state the purpose of their requests, as reported here. One opponent of the "purpose" requirement was quoted as saying: "Stating a purpose would be a 'radical departure' from the state's Freedom of Information Act."