Ninth Circuit says F.C.C. wrong on classification of cable modem service

I've read the opinion, actually the three opinions (here), read the articles in the NY Times and the Washington Post and USA Today and the AP, and I have no idea what is the meaning or significance of the 9th Circuit's ruling in the cable modem case, other than that the Court did not agree entirely with the F.C.C.'s determination about what cable modem service is and is not, which could or could not have some implication as to whether cable system owners could be required to share their cable networks with other service providers. Most of the opinions have to do with the law of stare decisis, as much as anything else, so I guess if I had any sense I would read the 9th Circuit's earlier opinion in the Portland cable modem case.

At one time, there was some interest in at least one Southwest Virginia county in trying to force the cable franchise holder as a condition of the renewal to allow open access to its cable network, and I thought the idea was scrapped after some court in the Portland case ruled against such a requirement, but maybe I've got all this backwards in my mind.

Hey, that was my money

In Dove v. Commonwealth, a panel of the Virginia Court of Appeals in an opinion by Judge Annunziata joined by Judge Benton and Senior Judge Coleman reversed the appellant's conviction for embezzlerment, where the issue was the appellant owned a filling station (as we say here in Mayberry) and had failed to remit to his supplier the proper share of the proceeds from his gasoline sales, instead spending the money on other things. The Court concluded that even though Mr. Dove owed the money, it was not proven that the money was somehow property of the supplier in a way that it could be "embezzled" within the meaning of the statute, Va. Code § 18.2-111.

Beware the witness who calls time on his own deposition

In Jeffress v. Reddy, one of the issues was whether Judge Moon of the W.D. Va. properly excluded the deposition testimony of one of the plaintiff's expert witnesses. Prior to the deposition, there was some dispute about payment of the expert's fee, and the Court ordered that the defendant would pay for 2 hours at $500. The expert took this to mean that he could quit answering questions after two hours, which he did. The Court ruled at trial that this transcript could not be used as evidence, because of the way it limited the defense questions, saying "it just seems so grossly unfair that a witness can call off his deposition, say "I am not going to testify any more," and at the deposition he can decide you like what’s there and so you get to use the deposition." On appeal, the Fourth Circuit in a per curiam decision for Judges Widener and Wilkinson, joined in part by Judge Traxler, the trial court's ruling on the deposition testimony was sustained. Judge Traxler dissented on this issue, concluding that there ought to have been something else done other than the complete exclusion of the deposition testimony of the expert.

Action for declaration on reimbursing Medicare from suit proceeds dismissed as premature

In Baughan v. Thompson, Judge Michael of the W.D. Va. ruled that the action seeking a declaration of whether the government was entitled for reimbursement of Medicare benefits out of the proceeds of an insurance settlement could not proceed without first obtaining an administrative decision from the Secretary of the Department of Health and Human Services. In the underlying claim, the plaintiff was injured by her neighbor's dog, her medical care was paid for initially by Medicare, and then she got a settlement from the neighbor's homeowners' insurance, and was trying to figure out what if anything should be paid out to the government.

Pleading contribution, indemnification, and a third-party complaint in a case about bad water meters

In AMCO Water Metering Systems, Inc. v. Travelers, Judge Michael upheld the recommendations of Magistrate Judge Crigler to deny in part the third-party defendant's motion to dismiss the third-party complaint seeking contribution and indemnification. In particular, the Court ruled that the elements for a contribution claim were satisfied, even though there was no privity between the parties and the losses for which recovery was sought were purely economic. On indemnification, the Court held that the claim was premature. Regarding whether the claims were properly brought as third-party claims, the Court concluded that they were derivative, not independent, and therefore properly brought as third-party claims.

Search begins before warrant shows up, case dismissed

The Kingsport paper (registration required) has this report on the dismissal of a major drug case in Tennessee because the search warrant did not arrive at the scene until 15 minutes after the search began.

The article says in part:

"Criminal charges against three Michigan people alleged to be involved in the biggest crack cocaine seizure in the history of Hawkins County were dismissed Monday due to a technicality. . . .

During a preliminary hearing Monday in Hawkins County Sessions Court, TBI Agent C.N. Wilhoit, who obtained the search warrant, testified that he arrived at the Vandegrift residence 10 to 15 minutes after the search of the residence began.

As a result, Sessions Judge David Brand ruled that the search warrant was illegal and none of the items allegedly confiscated as a result of the search could be used as evidence.

Without use of that evidence, the Class A felony possession of Schedule II narcotics charges against Jackson, Coleman and Thompson - who were at the residence at the time of the search - were dismissed."

Pharmacy school to follow law school in Buchanan County

As reported here in Roanoke, Buchanan County officials plan to follow up on the success of the location of the Appalachian School of Law in Grundy with a new pharmacy school also to be located there.

Analysis of general district and juvenile & domestic relations district court statistics

I'm not sure what it means, but this summary of the case statistics from the different districts shows the rate of change in the numbers of cases for the different districts with colorful maps of the state.

The big case the government should have brought against Microsoft

This ZDNet article ponders the implications of the products liability suits filed against Microsoft - claims that certainly make more sense than the attempt to lasso the computer industry within the confines of an anti-trust case. Everyone wants to get what they are paying for - software that works. (And government users seem to have as many software problems as anyone.)

Keeping taxes out of 2003 state elections

This article in the Washington Post explains how and why Governor Warner has avoided making this year's legislative elections a referendum on his plans for tax reform (whatever those plans are).

Falwell law school update

Via VLW, the Lynchburg paper has this update on the plans to open a law school as part of the Reverend Falwell's Liberty University in Lynchburg in the Fall of 2004.

Today's Virginia tax reform item

This column from the Norfolk paper describes a few ideas on reforming the tax laws of Virginia. One Republican legislator would "wipe out hundreds of exemptions to the sales tax, apply the tax to most services, and lower the rate from 4.5 percent to 4 percent. Then, he'd eliminate almost every addition, subtraction and deduction to the state income tax, including an overly generous break for seniors, and revamp a schedule in which the highest tax rate -- 5.75 percent -- kicks in at $17,000. The new plan would leave the first $15,000 of income untaxed for everyone. A top rate of 6.25 percent would apply to income above $50,000." Another group has a plan that "revamps the income tax and expands the sales tax to services, while eliminating the sales tax on food and adjusting the corporate income tax. The income-tax design is more progressive than Louderback's, with a top bracket of 7 percent kicking in at $100,000, while on the sales tax side, health care services, insurance and utility bills are exempt. The plan would produce about $1.48 billion in new revenue, which the organizing project believes will be needed to balance the state budget."

(Now, if I can just figure out how to claim that legal services are good for your health and a form of insurance against bad things happening.)

Let me show you my collection of "I like Ike" buttons

In Suffolk, where there will be seven candidates on the ballot running for the office of clerk of court, a dispute has arisen between the local Republican nominee, and another candidate who also advertises that he is a Republican, over who is the "real" Republican candidate for the position, as reported here in the Virginian-Pilot.

Environmentalist lawyer quits State Water Control Board

The opponents of the selection of environmentalist Kay Slaughter to sit on Virginia's State Water Control Board finally got their way, as she has resigned over continued criticism the perceived conflict between her service on the board that decides what to do about polluters and her law practice as an advocate in environmental matters, according to this report in the Norfolk paper and this report in the Charlottesville paper.

On being a specialist in the defense of death penalty cases in Virginia

Mark Holmberg of the Richmond paper has this column on criminal defense lawyer Craig Cooley, who "has served as co-counsel for 60 or so people accused of capital murder."

After exposing the VaCo conference, Richmond paper targets VML

In this story, a writer for the Richmond paper reveals that local government officials went to the Virginia Municipal League convention in Norfolk and spent public money on golf and seafood - with 8 people from the town of St. Paul running up a tab of $9,030.69. To add perspective on this sum, the writer notes that "[h]ad Virginia Beach spent proportionally as much as tiny Saint Paul, the city's convention cost would have exceeded $3.78 million."

Comparing the county representatives and their gathering at the Homestead with the city and town officials who met in Norfolk, the paper concludes "the Norfolk conventioneers easily outspent their counterparts at The Homestead by showing up in greater numbers and spending more freely on their spouses, fine food, boat cruises and other extras."

Related articles are here, here, here, and here.

There was no description of what if anything the representatives learned of use from this meeting. Maybe the Town of St. Paul got $10,000 worth of knowledge from the meeting in Norfolk. Sometimes a seminar or convention is worth the money, although such things are impossible to measure. For example, new government officials, like new lawyers and new judges, might need a lot of education and education to get a clue.

There was also no consideration of what if any are the tax implications of these events - can the IRS claim that payments for the travel and entertainment expenses of non-working spouses count as additional income that should be taxed? It says here that "if a spouse, dependent, or other individual goes with you (or your employee) on a business trip or to a business convention, you generally cannot deduct his or her travel expenses," in this IRS publication, but I don't know anything about tax law.

Testing of forensic evidence in Virginia

This Bluefield paper article describes the system in Virginia for testing of forensic evidence, against the background of a murder in Bluefield, Virginia.

Damascus and the Virginia Creeper Trail

Beth Macy (one of my all-time favorites) wrote this article for Saturday's Roanoke Times about the success of the Virginia Creeper Trail and its effect on Damascus.

The article includes the following tale of one feathered resident:

"And then there's Pete. He's the rooster who routinely wanders through the back door of Adventure Damascus, the bike repair and shuttle shop. Bike mechanic and shop co-owner Bill Leonard doesn't technically own Pete, though he feeds him regularly and uses him in photo ops; writers from newspapers and Outside and Men's Journal magazines have featured the town - and Pete - in recent years. 'You can't eat a celebrity,' Leonard says of Pete. 'That's the only thing that's saved him from going in the dumplin' pot.'"

What's in a name?

I must confess I google my own name from time to time, with interesting results, such as this (bogus) interview, which begins: "Steve Minor has been leading naked motorcyclists on trips around the Sound for more than a decade."

In fact, I've never been to the Puget Sound.

2003 rarity - "closely-watched" race for a Va. legislative seat

The Washington Post has this article on the Virginia Senate campaign between the incumbent, Senator "Edd" Houck, "a Democrat who has long represented a Republican-majority district," and his Republican challenger, Robert G. Stuber.

According to the Post, "Stuber opposes all new taxes and proposes returning millions of dollars that the government receives from the personal property tax on cars and from families with children who attend private schools or are schooled at home, as Stuber's two children were."

The election is made interesting by the changing demographics of the district, in the outer sphere of the D.C. metro area.

Rail worker asbestos cases out of Roanoke

The Roanoke Times has this overview of asbestos claims brought by former Norfolk & Western employees in Roanoke. The article notes that the cases are "piling up" in state court. Virginia has a special statute for the management of asbestos cases. Va. Code § 8.01-374.1 provides that "[i]n any circuit court in which there are pending more than forty civil actions against manufacturers or suppliers of asbestos or products for industrial use that contain asbestos in which recovery is sought for personal injury or wrongful death alleged to have been caused by exposure to asbestos or products for industrial use that contain asbestos, the court may order a joint hearing or trial by jury of any or all common questions of law or fact which are at issue in those actions," and that "when separate or bifurcated trials will be conducive to judicial economy, the court may order a separate or bifurcated trial of any claim, or any number of claims, cross-claims, counterclaims, third-party claims, or separate issues, always preserving the right of trial by jury."

Identity crisis

In recent weeks, my wife got a notice from the DMV about a Jeep she never owned, my dad got a call from the Virginia State Police about an application to buy a gun he never filed, and I got a call about a credit card debt for an account I never had. (Now, Dad has no use for guns, but we could have used the Jeep and the lower credit card balance, but apparently those were not being offered.)

Defense verdict in age case overturned for new trial against school board

In Kozlowski v. Hampton School Board, the Fourth Circuit in an unpublished opinion by District Judge Goodwin, joined by Judges Luttig and Michael, reversed the entry of judgment by the trial court on a defense verdict, concluding that "that the district court erred by excluding evidence of prior similar acts of age discrimination by Pearson, by admitting evidence of Kozlowski’s prior DUI arrests, and by refusing to sequester Pearson, a main defense fact witness," and also "erred by failing to instruct the jury that it could infer discrimination if it did not believe the proffered reasons for the nonrenewal," and that while "[a]ny one of these errors standing alone may have been harmless; considered collectively, however, the errors were substantially
prejudicial to Kozlowski’s case."

On other points, the Fourth Circuit concluded that the mixed-motive instruction offered by the court "satisfied Desert Palace even if that decision applies to the ADEA." Other discussion in the opinion seems to support the view that it is a waste to try to tell the jury all the details of the McDonnell-Douglas shifting burden proof scheme, as the Court observed: "Once the Board met its burden of production, the sole issue for the jury in this case was "the ultimate question [of] whether plaintiff has proved that the defendant intentionally discriminated against [him] because of his" age. . . . Because this was the only question for the jury, it would make no difference whether the jury understood this issue to be part of the plaintiff’s initial burden, the plaintiff’s ultimate burden, or both." Likewise, the Court noted, "Any
unnecessary confusion that the jury may have encountered in figuring out the interplay among the elements of the prima facie case, the defendant’s burden of production, and the plaintiff’s ultimate burden of proving discrimination is attributable primarily to the improper and needlessly complex jury instructions requested by the plaintiff in the first instance."

The Court agreed with the appellant's argument, based on the Reeves case, that the jury should have been instructed that "if it did not believe the reasons given by Pearson for the non-renewal, then it could infer, but need not infer, that age was the real reason for the decision." On this point, the Court said: "We do not suggest that a court in a pretext case must always instruct jurors that they may, but need not, infer discrimination from their disbelief of an employer’s stated reasons. Rather, we hold that when the evidence presented at trial creates some likelihood that the
jury might disbelieve the legitimate, non-discriminatory reasons given by the employer to justify its actions, then the jury should be instructed on this permissible inference." The Court refused to decide whether this error in itself would justify a new trial, in light of the other problems with the evidence and other instructions.

What are they teaching at Radford University?

This opinion piece by a philosophy professor from Radford University says that we are all blinded by patriotism into supporting on faith the actions of an unelected and obvious corrupt regime.

The professor says, among other things:

"Any informed person knows that Bush and his junta are utterly corrupt. They openly assign multi-billion dollar contracts to their former business partners without any competitive bidding. They openly represent the big oil companies in Alaska, Iraq, and Afghanistan. They openly oppose environmental regulations for their friends in big business. They openly lie. They openly defy world opinion and invade any country they please."

I don't believe that this is what the faculty had on its mind when my mom studied home economics at Radford around 1960.

Butterflies are free in Blacksburg

This article in the Roanoke Times says that a Virginia Tech garden has become a haven for butterflies - but there is no word on whether the more exotic specimens include the "pussycat swallowtail," as described in this Gilligan's Island script.

Woman who slept on a bench convicted of sleeping on a bench

According to this report in the Roanoke paper, a woman who hangs out on the streets of downtown Roanoke was convicted of sleeping on a bench outside Center in the Square. The article notes that "A judge in Roanoke General District Court fined her $10 for violating a city ordinance that is criticized by some as a way to criminalize homelessness and defended by others as a weapon against derelicts." The woman did not deny sleeping on the bench; she keeps her possessions in a shopping cart, and she explained, "I had been pushing that buggy and I tell you what, it wore me out." An ACLU representative the ordinance under which the woman was convicted is "the kind of ordinance that purports to be about sleeping on a bench but in fact is about trying to get a certain element of society out of the way."

When are religious leaflets also campaign literature?

Via VLW, the Washington Post has this story on a dispute in a county board of supervisors' campaign in Spotsylvania County over whether the "religious" leaflets distributed by one of the candidates should also be considered campaign literature, and therefore subject to the requirements of election laws.

Apparently, the one candidate has been handing out these flyers for years, since long before the election; they are "titled 'Faith & Freedom,' a phrase used in books, lectures and study groups to talk about the relationship between religion and government and the intentions of the Founding Fathers. Dunn does not believe in separation of church and state."

Expert witness impeached by resume errors

In the trial of Dr. Cecil Knox in Roanoke federal court, one of the government's expert witnesses was forced on cross-examination "to confront what one defense attorney argued were discrepancies concerning his educational background, previous employment and military record," as reported here in the Roanoke Times.

Still more on the law schools vs. DOD

This article says more on the law schools suing Department of Defense over the threat that they will lose federal money if they discriminate against military recruiters. It notes that the lawyers for the law schools include David Rudovsky - I've heard him speak on section 1983 litigation.

One thing I wonder about - in my law school class, there were a few military people who were going on to serve in the JAG corps somewhere. I wonder what they think about their own services being discriminated against by the law schools. What is the nature and origin of the First Amendment rights of law schools anyhow? Who does the speaking - is it the faculty, or the administration, or the student body? I wonder whether any of those law school plaintiffs are state schools. What happened to the interest in diversity that justifies affirmative action? Shouldn't they want all kinds of employers represented and to attract students who are interested in all kinds of employers? The law schools' lawsuit sounds like nonsense and hypocrisy to me.

Federal vs. state sentencing in Virginia

Via Ken Lammers' Crim Law, this Daily Progress editorial compares the sentencing guidelines in the federal system with the Virginia sentencing guidelines.

Proposed amendments to Virginia legal ethics rules

Here is the proposal of the Virginia State Bar for amendments to Rule 3.5, regarding "impartiality and decorum of a tribunal," and Rule 5.3, regarding responsibility for non-lawyer assistants. In both instances, Virginia is not going with the ABA model rule.

Totally hacked

It just occurred to me that both books I have showing in the margin have titles with the word "hack." I'm re-reading the book on the Hack Smithdeal trial in Johnson City - it is interesting local history, as well as legal history, told by the defendant's daughter.

Twenty minutes too long for error on school web page

According to this Coalfield Progress article, a comment on the sports page of a Wise County school's website that the high school in Appalachia would be closed was just absolutely unauthorized and unfounded. The citizens of Appalachia have been lobbying against consolidation that would close the local high school, if implemented. The web page with the error was taken down within 20 minutes after it went up.

Religion in schools in Northeast Tennessee

According to this report in the Kingsport Times (registration required), a lawyer from the Tennessee Department of Education "says she wants to dispel the myth that there can be no mixing of church and state in schools." The article notes that "According to state code 49-6-2904, a student has the right to pray in public school vocally or silently, express religious viewpoints, speak to and attempt to share religious viewpoints with other students in school, and possess or distribute religious literature in public school subject to reasonable time, place and manner restrictions."

More on the prospects for Internet sales tax

The Washington Post has this worthwhile article on the prospects for elimination of the ban on Internet sales tax.

Even if states could authorize sales tax on Internet sales, it is an open question (so far as I know) whether such a "tax increase" would pass muster in Virginia with either the General Assembly or the current governor, an old telecom man of sorts.

Out of the frying pan

Via Virginia Lawyers Weekly, this Virginian-Pilot article reports speculation that the defense lawyers in the sniper cases who got a change of venue to the Tidewater will find themselves in an even more hostile forum.

No charges against defense attorney who interviewed victim

In the matter of the zealous representation of a criminal defendant by counsel who interviewed the victim in somewhat unusual circumstances, the assistant Commonwealth's attorney has declared that no charges will be filed against the lawyer, as reported here in the Coalfield Progress. Earlier reports generated some interest from my fellow blogger at ethicalEsq?

Kingsport homeowner sues over police claim that he lives in a crack house

The Kingsport paper (registration required) has this story about a Kingsport man who filed suit in the E.D. Tenn. claiming that police have been harassing him because they think he lives in a crack house. The article says the plaintiff seeks $250,000 punitive damages plus injunctive relief, and the defendants include the City of Kingsport and various individuals.

I doubt the man can get punitive damages against the City, and I wonder whether he is really claiming only punitive damages, as the article suggests - that's not allowed, is it - punitives without any claim for compensatory damages?

Pay your money, take your chances

Via Jurist, the filing fee for an appeal to one of the federal courts of appeals is being raised to $255, as reported here.

Tax consequences of settlement of section 1981, 1983, and Title VII claims

Applying the federal tax law in effect prior to the 1996 amendments to section 104(a) of the Internal Revenue Code, the Sixth Circuit held in Banks v. CIR that the proceeds from the settlement of plaintiff's claims under 42 U.S.C. 1981, 42 U.S.C. 1983, and Title VII were taxable income (and not for personal injuries), but that the contingent fee part of the settlement was excludable from plaintiff's gross income, in a case settled in California.

The opinion notes that unlike the Sixth Circuit, the Fourth Circuit says contingent fees are not excludable from gross income, citing Young v. Comm’r, 240 F.3d 369 (4th Cir. 2001). This looks like a good case for the Supreme Court, because the issue comes up every day - what are the tax consequences of settling a case?

UMWA reorganized

This AP article says the United Mine Workers of America has reorganized its organization, including the elimination of districts as separate entities from the international union.

The ability of the districts to conspire with the international was a bone of contention in a case we litigated long ago, called Ramar v. UMWA, 814 F. Supp. 502 (W.D. Va. 1993), In that opinion, on the defendants' post-trial motions, Judge Wilson ruled that they had waived the issue of whether it was legally impossible for the different unions to conspire, for purposes of a claim under the Virginia Business Conspiracy statutes, Va. Code 18.2-499 and 18.2-500.

(I call them the Virginia Business Conspiracy statutes - there is however an interesting law review article by Professor Ulrich of Washington & Lee explaining that this statute was passed during the age of the civil rights movement to create a civil (and criminal) remedy for sit-ins seeking the integration of lunch counters and the like.)

Supreme Court to decide immunity of states in bankruptcy suits

This Reuters article and this article from the NY Times (registration required) and this article in the Washington Post describe the case in which the Supreme Court decided to take on the issue of immunity of the states in bankruptcy cases.

Forum clause requiring suit "within the state" where owner located includes federal court

In Ferri Contracting Co., Inc. v. Town of Masontown, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, King, and Shedd, reversed the district court's conclusion that a forum selection clause required suit in state court. The language of the clause at issue was this: "The contract provided that any litigation with respect to the contract 'will be decided [ ] in a court of competent jurisdiction within the state in which the OWNER is located.'"

Denying use of public building to homeschoolers does not violate First Amendment

In Goulart v. Meadows, the Fourth Circuit in an opinion by District Court Judge Goodwin, joined by Judge Motz, with Judge Niemeyer dissenting in part but concurring in the result, held that a Maryland county did not violate the plaintiff homeschoolers' First Amendment rights by denying them use of a community center pursuant to a county policy against use of the buildings for private educational instruction intended to meet state educational requirements. Judge Niemeyer agreed with the District Court that the First Amendment was not implicated at all by the county's policy, and would not have engaged in the lengthy discussion of whether the county's intrusion on speech rights was justified.

More on the law school suit against DOD

In this Findlaw column, the author explains why my argument that the government should be allowed to deprive law schools that discriminate against military recruiters of federal funds is all wrong, citing among other things the Supreme Court case striking down federal limitations on the use of legal aid money.

In this Findlaw column, another author says the government is right and the law schools are wrong.

AG Kilgore files civil commitment petition against 9th sex offender

The AP reports here that Attorney General Jerry Kilgore has now filed for civil commitment of nine sex offenders, pursuant to a new Virginia law. The article notes that the first hearing on one of these petitions will be held on October 7.

9th Circuit Tosses 'Duffield' in Dustbin

That's the law.com headline for this article on the 9th Circuit decision this week, which is not about a town in Scott County, Virginia, but rather upholds the arbitrability of employment discrimination claims in some circumstances.

Haynes nominated for Fourth Circuit

Howard Bashman notes here that President Bush has nominated William J. Haynes, II, to serve on the U.S. Court of Appeals for the Fourth Circuit. Haynes currently serves as general counsel for the Department of Defense and is a graduate of Davidson College and Harvard Law and clerked for Judge James McMillan of the W.D.N.C.

There's been a "perfect storm" of events - some very good, some very bad - that has kept me from blogging this week, but I'll be back at it shortly.

Worth reading - ideological judging

Via this post from How Appealing, this article rebuts the study of a University of Chicago law professor who claims that ideology has a substantial effect on the outcome of appellate cases.

Wise County to seek rehearing from Va. Supreme Court on landfill fee case

The Bristol paper reported here that the Wise County Board of Supervisors decided to ask the lawyers to file a petition for rehearing in the landfill fee case.

I'm hoping that the Virginia Supreme Court grants rehearing in the landfill fee case, because their opinion leaves many, many unanswered questions - like what is the County supposed to do now? How can the ordinance be made constitutional? How should the County decide which fee-payers, if any, are entitled to refunds, and in what amount? What are fee-payers supposed to do under local and state law, are there procedures to be followed, remedies to be exhausted? Instead of making refunds, can the County charge more to the fee-payers who pay less, to even out the disparities in the rate to avoid the equal protection problem? Does this ruling apply only prospectively? There are some indications from the Virginia Supreme Court, like in the federal retiree taxation case, that the Supreme Court's declarations that a taxing scheme is unconstitutional apply only prospectively. See Harper v. Virginia Dept. of Taxation, 241 Va. 232, 241-42, 401 S.E.2d 868, 873-74 (1991). Even if that's true, and the same rule applies in "fee" cases, what does it mean? No refunds? A state law rule that says no refunds sounds like a sure-fire denial of due process to me - somehow, some way, the County needs to smooth out the disparities that gave rise to the equal protection, and partial refunds to the discriminatees could be one answer. Compare Fulton Corp. v. Faulkner 516 U.S. 325, 346-47 (1996) ("a State might refund the additional taxes imposed upon the victims of its discrimination or, to the extent consistent with other constitutional provisions (notably due process), retroactively impose equal burdens on the tax's former beneficiaries. A State may also combine these two approaches.").

I know that the Virginia Supreme Court is not in the business of giving advisory opinions, and maybe the Court will do nothing - which means that the County will have to gamble on what the Court's opinion means, until the next appeal.

Hearing begins on appeal of use permit for mining in agricultural zone

Landowners in Orange County are challenging the award of a special use permit to General Shale for the operation of a shale mine in an agricultural zone, as reported in this Daily Progress article, which says that the circuit court may grant the defendants' motion to strike the evidence.

Pass/fail grading for first two years at U.Va. med school

The Cavalier Daily reports here that the U.Va. medical school is moving to pass/fail grading for the first two years of medical school, beginning with the Class of 2007.

Tax reform dead?

Via Virginia Lawyers Weekly, the Richmond Times-Dispatch reports here that the prospects for sweeping tax reform in Virginia are already dead, including the prospect of a tax on services on including legal services.

Amazon negotiating endorsement of Internet sales tax

According to this story in the Washington Post, the world's largest online vendor, Amazon.com, is working on a deal for a Internet sales tax proposal that will have its approval. The srticle specualtes that by co-opting Amazon, the proponents of taxing Internet sales will steal a march on their many opponents.

Ban the charitable calls, too

To the federal court opinion from Colorado, holding that the do-not-call list of the FTC was unconstitutional because it does not bar calls soliciting charitable contributions, will Congress make the natural response and say, ok, we'll ban the charitable calls, too? Yet, I wondered about the part of the opinion that suggests there is a hierarchy of protected speech - the district court said the following:

"Despite the value of commercial speech, however, it is afforded lesser protection under the First Amendment than other types of speech, such as speech soliciting donations for political or charitable causes. Central Hudson, 447 U.S. at 562, 100 S. Ct. at 2349; Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632,100 S. Ct. 826, 834 (1980). Charitable solicitation of funds does more than inform private economic decisions because it involves the dissemination of views and the advocacy of political and social causes. Village of Schaumburg, 444 U.S. at 632, 100 S. Ct. at 834. It is, therefore, protected more highly than commercial speech. Commercial speech also receives lesser protection because, to require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the First Amendment's guarantee with respect to the latter kind of speech. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S. Ct. 2371, 2375 (1995)."

So, if "charitable" speech gets more protection under the First Amendment than does commercial speech, then why is that not a sufficient justification for the do-not-call list to apply to commercial speech but not to charitable speech? On the other hand, it was my understanding that there is no such hierarchy of different kinds of speech that are more protected than others.

Augusta County Republican proposes cigarette tax

The Roanoke Times has this article on the latest discussions of the tax reformers, including a proposal from Sen. Emmett Hanger to impose a new tax on cigarettes.

How Appealing rules

Via Southern Appeal, this post suggests that appeals court litigants every where will want to get their views posted on How Appealing, because the appeals court judges and law clerks all read it.

Virginia PAC for parents reaches Southwest Virginia

This article from the Connection newspapers tells of a political action committee for parents, with membership that reaches Southwest Virginia.

Southeast Virginia contractors swamped in wake of Isabel

People are literally throwing themselves at tree-removing contractors, according to this Daily Press report.

Motion to suppress granted where probable cause founded on illegal hotel room search

In U.S. v. Pope, Judge Jones of the W.D. Va. granted the defendant's motion to suppress evidence from the search of his vehicle by police, who were acting on knowledge they obtained from a search of the defendant's hotel room for which they had no consent and no warrant. The defendant was represented by David Scyphers of Abingdon.

Evidence of comp benefits not barred by collateral source rule in ADA employment case

In Riffey v. K-VA-T Food Stores, Inc., Judge Jones held that the employer-defendant was not barred from introducing evidence of the workers' compensation benefits the plaintiff received, distinguishing cases involving unemployment compensation and relying on a NLRA case from the Fourth Circuit.

Campaign Disclosure project gives Tennessee an F, Virginia a D+

This article in the Kingsport Times (registration required) says the campaign finance disclosure requirements for Virgina and Tennessee are rated as poor in a recent study.

I don't know, the information about campaign contributions in Virginia accessible by the Virginia Public Access project seems detailed and interesting to me.

More on the West Virginia coalbed methane case

The AP has this story on the coalbed methane ownership rights case argued this week before the Supreme Court of West Virginia.

Wise County court recognizes charitable immunity of Little League

According to this article in the Coalfield Progress, Judge Robert Stump for the Circuit Court of Wise County sustained the charitable immunity defense of the Coeburn Little League in a wrongful death case arising out of the death of a young man who was killed by a steel cable on the property of the baseball field while he was riding his ATV.

Suing legislators over judicial selection

Via Virginia Lawyers Weekly, the Richmond Times-Dispatch has this story about a lawsuit brought by a Richmond lawyer against a group of legislators for asking improper questions of candidates for judicial positions about actual cases from the past, present, or future.

The article includes this description of the petitioner's views:

"Baugh said he attended sessions at which judges who were up for reappointment were questioned by members of the House committee about decisions they had made.

Such questioning suggested that reappointment would be influenced by whether the judges' interpretation of the law matched that of the legislators, Baugh said in the suit.

Any effort to influence judicial discretion violates the state constitution and the right of the people "to be free from oppressive government, which arises when one branch of the government seeks to or actually dictates how that discretion should be applied," Baugh said.

Baugh alluded to the questioning of Judge Rosemarie Annunziata when she was up for reappointment this year to a second eight-year term on the Virginia Court of Appeals.

Several legislators challenged the reasoning in her dissent in favor of a lesbian mother in a child-custody case, but she ultimately was reappointed.

The questioning was improper because it was aimed at the exercise of Annunziata's judicial discretion, Baugh said. The only proper areas of inquiry are a judicial candidate's "good behavior, personal character and fitness for office," he wrote."

More on electronic filing in federal court

From this press release about the recent meeting of the Judicial Conference of the United States:

"In September 2001, the Conference adopted a policy for remote public electronic access to civil, bankruptcy, and appellate case files. But at that time it decided not to allow for similar access to criminal case files. In March 2002, the Conference established a pilot program for 10 district courts and one appellate court to allow Internet access to criminal case files.

The Federal Judicial Center has studied the experience of the pilot courts and found no evidence of harm to any individual and also found that a majority of those interviewed in the pilot courts —judges, court staff, and counsel — extolled the advantages of electronic access. The Conference Committees on Court Administration and Case Management, Criminal Law, and Defender Services will work together in drafting appropriate implementation guidance for the courts. The pilot program will continue access during the implementation period.

Once implemented, the policy requires that certain personal identifier information should be partially redacted by the filer of the document, whether it is filed electronically or in paper form. For example, Social Security and financial account numbers should be reported as the last four digits only and the names of minor children should be listed only by their initials. This is the policy currently in effect for civil cases.

Remote access to federal court files has been made possible by the Case Management/Electronic Case Files (CM/ECF) system, which is in the process of being implemented throughout the federal courts. As of September 1, 2003, 25 district courts and 60 bankruptcy courts are using the system. More than 10 million cases are on the CM/ECF system and more than 40,000 attorneys and others have filed documents over the Internet. Electronic access to these documents is available through the Public Access to Court Electronics Records (PACER) program."

Discussion on ideology and judicial nominations

I read this transcript of a discussion sponsored by the Federal Society about the role of ideology in judicial selection.

Part of what makes it amusing is that everyone has said something stupid at one time or another - liberals and conservatives have both guessed wrong time after time about judges, so far wrong to make it look like they either have no idea and/or don't care whether what they are saying is true.

More on the really big tech conference in Roanoke

The Washington Post has this article on the efforts of Governor Warner to sell the possibilities of tech commerce in the Commonwealth at the fancy meeting in Roanoke that features former British Prime Minister John Major and Retired General Norman Schwartzkopf as speakers.

Virginia Supreme Court calendar for 2004

This revised schedule for the Virginia Supreme Court shows when the writ panels will be held next year - that's a new bit of information that I don't think was published on the website in the past.

Judge Jones grants consolidation in Charles Gilmore murder case

In Gilmore v. U.S., Judge Jones granted the United States' motion for the consolidation of the perjury case against a witness from an earlier trial against Walter Lefight Church with the murder case against Church and former mayor of Pocahontas, Virginia, Charles Gilmore.

Some parts of NC election law unconstitutional

On Monday, in the case of North Carolina Right to Life, Inc. v. Leake, the Fourth Circuit in an opinion by District Judge Bullock, joined by Judge Widener, with Judge Michael dissenting in part, upheld part and reversed part of the district court decision that some parts of a North Carolina election law are unconstitutional. This case is more one for Rick Hasen's blog, and in fact he had this post about it.

U.Va. beats football team, steals band director

The Roanoke Times has this story on how University of Virginia trounced the Western Michigan football team and hired away its marching band director to organize the all-new marching band at Virginia, paid for by Carl Smith.

WV home-schooled wrestler wins in court

One of the Charleston, WV papers reports here that a 12 year-old home schooler has successfully challenged a school rule that barred him from wrestling on his local junior high team, since he is not a student at the school. The article says the boy was represented by a lawyer named Minor (no relation, s'far as I know).

Peace week at Radford

Radford University, my mom's alma mater, is having "War on Peace" week, as described here.

Wireless in Dickenson County

The Dickenson County wireless internet project, which is the product of 2003 legislation introduced by Delegate Bud Phillips, is described in this Coalfield Progress article, which says there will be a big showcase event in Clintwood on October 13.

More on Triplett for Congress

The Coalfield Progress has this story on the brand new congressional campaign of Republican Kevin Triplett.

What happens if the same prosecutors have charges pending against your lawyer

In Washington v. U.S., Judge Jones of the W.D. Va. concludes that the defendant is not entitled to a new trial, even though he had some colorable points to raise about tactics his counsel did not pursue, and the counsel with Rickey Young, the Martinsville lawyer who was himself prosecuted at about the same time as the defendant.

I'm wondering how the moving party managed to file such a detailed and substantive motion post-judgment, but could not manage to do better at preserving the same issues during the trial - maybe he has some help from prison writing his court papers these days.

More on the case of the unconstitutional landfill fee

Now that the Virginia Supreme Court declared the landfill fee in Wise County unconstitutional , there is the mess of figuring out what to do about it, and the Coalfield Progress has this article on the County's effort to decide on a game plan and this article on the effort on federal court litigation brought by some fee-payers seeking refunds.

I've been thinking about the Virginia Supreme Court's opinion, but I have so many ideas about how terrible the opinion is and what might be ways around it that I don't have time enough to figure out whether any of them are worthwhile. I think that I mostly agree with the analysis of the county attorney, to the extent that I understand from the paper what she is saying.

Ex-chief of Republicans tells all about listening in on Democrats' call

According to Ed Matricardi, the former executive director of the Virginia Republicans, his eavesdropping on Democratic leaders' conference calls was approved by former Senator Wilkins and others, as reported here in the Washington Post. The testimony came before a disciplinary panel for the Virginia State Bar, which concluded that Matricardi should lose his law license for 2 years.

NASCAR dad running for Congress

Former NASCAR official Kevin Triplett has officially launced his campaign to run as a Republican for the 9th District Congressional seat held by Rep. Rick Boucher, as reported here in the Roanoke Times and here in the Kingsport Times (registration required).

Judge Conrad of W.D. Va. flies through Senate, 89-0

The Roanoke Times has this article on the 89-0 vote of the U.S. Senate in favor of the nomination of Judge Glen Conrad to succeed Judge Turk as United States District Court Judge for the Western District of Virginia.

Verizon chief says networks would expand like crazy but for sharing requirements

In comments at the COVITS meeting in Roanoke, Verizon chief Ivan Seidenberg declared that the big obstacle to the improvement of Verizon's network in Virginia is government rules that require Verizon to share with CLECs, according to this article. Apart from this, the Roanoke Times quotes Seidenberg as saying that "Verizon plans to roll out fiber-optic connections to every home and business in its 29-state territory over the next 10 to 15 years."

I wonder what that means exactly.

Anyhow, Verizon is the regional Bell operating carrier in Virginia - the largest incumbent carrier in the state, by far (but not the ILEC in many parts of Southwest Virginia).

Judge Kiser calls for exercise of prosecutorial discretion

The criminal prosecution of an unsuccessful plaintiff for intimidating a federal marshall was dropped after Judge Kiser suggested the prosecution was too much, according to this report in the Roanoke Times.

On the history of progressive taxation

This Taxing Blog post recollects some history regarding the views of the Founders on progressive taxation.

Law schools sue over law barring funding for schools barring military recruiters

Via Politics and Law, the NY Times (registration required) has this article about a group of law schools having filed suit for a injunction against the enforcement of the federal law which provides for the cut-off of some federal money from schools that discriminate against military recruiters.

I would think that this suit would go the way of challenges to Title IX - federal money comes with all the strings attached, and the schools are free to do without if they choose not to do what is necessary to get the money.

First thing let's kill all the law clerks

The Curmudgeonly Clerk points out here, and Southern Appeal seems to agree (if only his permalinks worked), that it is absurd to blame the content of too-liberal opinions on the law clerks.

I don't know what it's like to be a clerk for an appellate judge, or for any but one district court judge, and inasmuch as he was 68 and I was 25, I don't believe I influenced him one bit.

To the contrary (and on the other hand, etc.), I once gave a speech about my judge and finished with a paraphrased version of a snippet from a Scott Turow book, The Laws of Our Fathers, where the actual quote is this:

"Law clerks spend their first year or two as lawyers, an intesely formative period, at a judge's side, seeing firsthand how the flesh of real life hangs on the raw bones of law-school learning. Much as racehorses are always identified by sire and dam, clerks are forever known by their judges, and it is perhaps my proudest heritage in the law that to be a 'Ringler' clerk."

Judge "Ringler" is fictional, but those were my sentiments, exactly.

More on Virginia schools and guns - state law vs. local rules

The Lynchburg paper says here that local rules ought to trump state law on the issue of unloaded guns in locked containers on school property.

Goldman strategy - 100% on schools before 100% on car tax

This column from the Daily Progress says that Democratic strategist Paul Goldman wants his partisans to propose that there be no further implementation of car-tax reduction before there is full funding for the state's education programs.

James J. Kilpatrick on the Suzuki vs. Consumers Union case

Commentator James J. Kilpatrick has this commentary on the Suzuki roll-over case against the publishers of Consumer Reports magazine, now before the U.S. Supreme Court. The column provides, in part: "What began 15 years ago as a test of an automobile's stability is now in the Supreme Court. There the case offers a test of the stability of the First Amendment" and concludes "Did Consumer Reports, that pillar of rectitude, publish a rigged report for financial gain? I don't believe this gossamer speculation, and I don't believe a jury will swallow the allegation if the Supreme Court lets it go to trial."

Chief Justice Hassell on judicial freedom

Last week, the Richmond Times-Dispatch published this commentary by Chief Justice Leroy Hassell of the Virginia Supreme Court, about the judiciary. Among other things, he said:

"Every litigant has an absolute right to have his or her case decided by an impartial judge who will not be influenced by political, social, or economic considerations."

"We must always remember that the lack of judicial independence and the king's obstruction of the administration of justice, along with his failure to accord the colonists basic legal rights such as the right of trial by jury, were important factors that our nation's Founders relied on to justify their separation from Great Britain and their decision to embark on a new form of government that provided the basis of our democracy."

"The General Assembly, in the discharge of its constitutional obligation to elect judges, should elect only individuals to serve as judges who understand both the importance of judicial independence and the proper role of each branch of government. When electing judges, the legislature must assess the candidate's ability, experience, integrity, judicial philosophy, judicial temperament, and view of the role of the judiciary. However, when the General Assembly discharges this constitutional responsibility, it must be careful to avoid any actions that diminish the independence of the judiciary."

"As judges, we must be ever mindful that we are stewards of the public trust. We must discharge our constitutional and statutorily prescribed responsibilities with diligence, humility, compassion, and competence. We always must exhibit respect and courtesy to the thousands of persons who appear each day in the courtrooms of this Commonwealth."

Robert E. Lee tree done in by Isabel

The Richmond Times-Dispatch reports here that one casualty of Hurricane Isabel was a 450 year-old oak tree in Hanover County, "said to have provided shade to Gen. Robert E. Lee and his staff while they camped in the area during the Civil War."

$2.55 million settlement in W.D. Va. fraud case

The Roanoke paper has this account of a $2.55 million settlement in a case brought by a whistleblower against a health care company.

On the flock of Byrds

The Kingsport paper (registration required), saying here that the Senator Byrd is not one to cast the first stone on wasteful government spending, cites the following edifices in West Virginia:

"Over the years, Sen. Byrd's home state of West Virginia has become the repository of the Robert C. Byrd Federal Building, The Robert C. Byrd Locks and Dam, the Robert C. Byrd Health Sciences Center, the Robert C. Byrd Library, The Robert C. Byrd Technology Center, The Robert C. Byrd Hardwood Technologies Center, The Robert C. Byrd Community Center at the Sugar Grove Naval Station, the Robert C. Byrd Green Bank Telescope, the Robert C. Byrd Expressway, the Robert C. Byrd Visitor Center at Harpers Ferry National Park, the Robert C. Byrd Clinic at the VA in Huntingon, the Robert C. Byrd Industrial Park, the Robert C. Byrd Learning Resource Center, the Robert C. Byrd Cancer Research Center, the Robert C. Byrd Hilltop Office Complex, the Robert C. Byrd Rural Health Center, the Robert C. Byrd United Technical Center, the Robert C. Byrd Community Center in Pine Grove, the Robert C. Byrd Institute for Advanced Flexible Manufacturing, the Robert C. Byrd Federal Courthouse, the Robert C. Byrd addition to the Oglebay Park lodge, the Robert C. Byrd Institute in Charleston, the Robert C. Byrd Academic and Technology Center, the Robert C. Byrd Bridge, the Robert C. Byrd Honors Scholarships ... well, we could go on, but space is limited."

More on nudity at the Barter Theatre

The Barter Theatre in Abingdon is the "state theater" of Virginia. Right now its offerings include a play that involves some degree of onstage nudity by the male and female leads. The Bristol paper published this collection of letters to the editor covering the spectrum of opinion about whether this was good or bad.

Notwithstanding the daily repetition at the Barter of the founder's words, "If you like us, talk about us; if not, then keep your mouth shut," this development strikes me mostly as a publicity stunt by which Barter has successfully gotten a lot of press coverage and attention.

On the need for an academic bill of rights

This David Limbaugh column about the David Horowitz proposal for an "Academic Bill of Rights" that would preclude firing professors for their political views includes the following statement:

"The University of Virginia offers a course in Marxism, which posits that the work of the godfather of Communism is the 'standard against which all subsequent social thought must be judged. … It’s worth devoting an entire semester to it.'"

I wonder where the Marxists hang out at the University these days, since the Cave in Old Cabell is no longer there. I never studied Marxism at Virginia, but I did get assigned to read "In Defense of Anarchism," about which I recall nothing but the title.

Anyhow, I thought there already was sort of an academic bill of rights adopted by most schools, promulgated by the American Association of University Professors, called the "1940 Statement of Principles on Academic Freedom and Tenure."

More on the trial of Dr. Knox

This Roanoke Times article on the trial of Dr. Cecil Knox shows that his office was a strange place.

West Virginia to decide coalbed methane ownership case

This article decribes the pending case before the West Virginia Supreme Court on the question of whether ownership rights to coalbed methane pass with the right to mine the coal. Oral argument in the case is scheduled for this week. A similar case is now pending before the Virginia Supreme Court, on appeal from Buchanan County - see this post.

Searching for Bigfoot in Virginia

This article describes a Manassas man's search for Bigfoot in Virginia. The article notes that "[f]rom his research, he believes there may be as many as 900 Bigfoot creatures statewide."

Cruzan case comes to Virginia

The Roanoke paper reports here that the lawyer from the Nancy Cruzan case will be in Roanoke this week to talk about the case. The Supreme Court's Cruzan opinion is here.