Summary judgment on discrimination claims of Roanoke police officers affirmed

In Altizer v. City of Roanoke, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Shedd, and Duncan summarily affirmed without oral argument this decision by Judge Wilson of the W.D. Va. to grant summary judgment on the employment discrimination claims of the plaintiffs, Roanoke police officers who claimed that they were victims of reverse discrimination based on their race.

$300 personal injury verdict against Wal-Mart in W.D. Va. affirmed

In Hall v. Wal-Mart Properties, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Michael, and Shedd affirmed a $300 verdict over the plaintiff's challenges to the outcome and the conduct of his trial, which was conducted by Senior District Judge James C. Turk of the W.D. Va. in Roanoke. Appeals specialist Monica Taylor Monday argued the case before the Fourth Circuit for Wal-Mart.

Constitutional challenge to Va. statutory limit on tow charges dismissed under 11th Amendment

In Va. Ass'n of Towing and Recovery Operators, Inc. v. Commonwealth of Virginia, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz, Gregory, and Shedd affirmed the dismissal of the towing association's constitutional challenge to the statutory limit on nonconsensual towing charges under Va. Code § 46.2-1233.1, where Judge Hilton of the E.D. Va. had concluded that the relief sought against the Commonwealth was barred by the Eleventh Amendment.

Student loan discharge reversed

In U.S. Department of Health & Human Services v. Great Lakes Higher Education Servicing Corp., the Fourth Circuit in an opinion by Judge Motz, joined by Judge King, with Judge Michael dissenting, reversed the district court's decision that student loan debt could be discharged based on unconscionability. The majority held that the district court applied an improper, too lenient standard in determining what was "unconscionable." Judge Michael concluded that even under the correct standard, the debtors should have been let off the hook.

On mandatory minimum sentences

In U.S. v. Rice, the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins, Judge Traxler, and Senior Judge Hamilton explained:

"We understand what the district court was trying to accomplish here. Rice was a relatively minor participant in the August 14, 2001 drug transaction and participated in this transaction not to make money but rather only to obtain some crack to fuel his unfortunate addiction to the drug. The district court understandably was compassionate, trying to give a break to an individual whom it deemed unworthy of a mandatory life sentence. The mandatory life sentence in this case may well reflect some of the inequities involved in the imposition of mandatory minimum sentences and any argument here is with the mandatory life sentence mandated and not with the compassionate rationale of the district judge. Indeed, mandatory minimum
sentences are designed to ensnarl the most culpable, but all too often they capture many who are considerably less culpable. Moreover, mandatory minimums often do not take into account the defendant’s role in the offense, which more accurately reflects the dangerousness and the culpability of the defendant. However, even though we may feel that the district court ultimately imposed a just sentence of 293 months’ imprisonment, we are not at liberty to disturb a mandatory sentence of life imprisonment that is consistent with the Sentencing Guidelines, the will of Congress, and the proportionality principles laid down by the Supreme Court and this court."

Hey, I got my Blogger sweatshirt

Those in the know about Blogger know that they sold us something, then decided to give it away for free, and those of us who paid for it get a sweatshirt instead of a refund, or something like that. Well, I put in for the sweatshirt, and it arrived at the house today.

Now, I don't remember how much money was involved, and anyhow, where else could I get a Blogger sweatshirt for any price? It even says Google on the sleeve.

Years ago, the old law firm had a picnic, and when I arrived there, one of my bosses said to me, "Steve, only you would wear a law review t-shirt to a firm picnic." My response was: "in this group, only I would have one." Maybe I'll find an appropriate venue one of these days to have some fun wearing my new sweatshirt.

How do Howard Bashman and Tom Goldstein do it?

I'm trying to finish three amicus briefs to be filed in the Supreme Court of the United States before Friday - and as usual it appears that the work may expand to fit the time available. So, no new blogging until the fun is over.

My two favorite lawyer jokes relate to writing on a deadline. One is about the lawyer who asks for 30 days to write a brief, and the judge asks if so much time is really required. Well, the first 27 days are that important, the lawyer answers, but those last three I can't do without.

In response to this, an Abingdon lawyer once told me of the lawyer who said to the judge, "I'm sorry, Your Honor - I didn't have time to write a shorter brief."

The cost of free lawyers

It says here that Virginia spent $57 million on court-appointed counsel for criminal defendants in 2002.

Norfolk lawyer Walter Kelley nominated for the E.D. Va.

One of the few Tidewater lawyers I met (however briefly) while I was in law school at William & Mary and can remember to this day is Walter Kelley, who has been nominated to be a U.S. District Court judge for the Eastern District of Virginia, according to this report.

Scott County prosecutor declines ESPN interview on football team hazing incident

Interim Commonwealth's attorney Marcus McClung in Scott County is refusing to talk to ESPN about the football team hazing incident from Rye Cove, concluding that it would add to the suffering of the victims to have their stories told on national television, according to this report in the Kingsport paper (registration required).

The article quotes Mr. McClung as saying the following:

"Marcus McClung said Thursday that he has spoken with officials at ESPN, the 24-hour sports cable network, but their requests for an interview from his office about the June 16 incident have been refused.

"It's not that we are trying to be rude to ESPN or hate ESPN or any other national media (source). This is a policy issue that my office is taking,'' said McClung.

"It just doesn't seem right to do (an interview) and blow this issue up any more than it is now. To think that this issue would not be reported on given the facts would be incorrect. But to further expand upon events to a national audience, I think, is not acceptable because the victims are trying to get on with their lives,'' he said."

Unrelated to matters of law enforcement, I'm sure Marcus would be glad to hear talk on ESPN about another McClung, Seth McClung, a major league baseball pitcher with the Tampa Bay Devil Rays. I think Seth and Marcus are brothers. The last I heard, Seth was injured and did not play the last part of the season. ESPN says here that Seth pitched 38 and 3/2 innings for Tampa in 2003, with a 4-1 record and 25 strikeouts.

States lobbying for end to bar on taxing Internet access

The Washington Post reports here on increased state lobbying of Congress for the right to tax access to the Internet, an issue not to be confused with collecting sales tax on items sold over the Internet.

Wise County files for rehearing in landfill fee case, administrator moves to dismiss civil rights claim

In these reports from the Coalfield Progress, here it says that Wise County has filed a petition for rehearing of the Virginia Supreme Court's decision in the landfill fee case, and here it says that the Wise County administrator has filed a motion to dismiss based on qualified immunity and failure to state a claim, in the federal civil rights suit brought by a woman who was criminally prosecuted for failure to pay the landfill fee before it was declared unconstitutional.

Moonshine in Fairfax County

In Fairfax County, they've got Bloomingdale's, Saks Fifth Avenue, Nordstrom's, and the latest offering sale, illegal home-brewed whiskey, according to this Washington Post article.

New theory in suit over inmate death at Wallens Ridge prison

According to this Roanoke Times report, the plaintiffs in a lawsuit over the death of an inmate at Wallens Ridge are now making the additional claim that "an automatic external defibrillator that would have saved the inmate's life was not used to revive him."

U.S. attorney for W.D. Va. speaks to county board against methadone clinic

This Roanoke Times article says that the W.D. Va.'s U.S. attorney, John Brownlee, spoke against allowing a methadone clinic to be located in Roanoke County, even though he had to admit there were no problems with crime in the areas of other methadone clinics in Southwest Virginia.

From what little I know of it, methadone treatment is sort of like probation, only those with a high-level of discipline can pull it off, and the people with the problem are often going to fail.

Viewpoints not unlike my own regarding the law schools vs. DOD

This column from the Yale Daily News says law schools who want to keep military recruiters off-campus are phony Free Speech advocates, repressing the views of both recruiters and those who might want to be recruited, and cites the words of Justice Brandeis, that "the remedy to be applied is more speech, not enforced silence."

Federal judgeship news - Urbanski as magistrate judge, while senators riled over 4th Circuit pick

Two stories via VLW - first, as reported here in the Roanoke Times, Mike Urbanski of the Woods Rogers firm in Roanoke, a commercial litigator and anti-trust expert, has been selected by the judges of the Western District of Virginia as the new magistrate judge to succeed Judge Glen Conrad. Second, the Richmond paper has this incredible story about opposition and snafus in connection with the nomination of William Haynes for the Fourth Circuit seat made vacant by the senior status of Judge H. Emory Widener, Jr.

Big chicken

The Roanoke Times has this article on the debate (or lack thereof) about who's the "Big Chicken" in the race between one of the Emicks and Morgan Griffith - and it has nothing to do with Hardees, the only place I would expect to see a Big Chicken.

Supreme Court says no to Hanover County wastewater case

According to this report, the U.S. Supreme Court has denied the petition for certiorari filed by landowners who brought suit against Hanover County, Virginia, regarding the construction of a wastewater treatment plant. In the Fourth Circuit, the district court's ruling for the landowners was reversed in favor of the County. The article notes that another form of the same litigation is still alive in the Circuit Court for the City of Richmond.

Bummed out in Southwest Virginia

In the Virginia Tech student newspaper, this report mentions, among other things, a state statistic which says that "residents of Southwest Virginia were 50 percent more likely to commit suicide than any other part of the commonwealth."

Virginia Tech still paying for suing the ACC and other Big East support

This article says that Va. Tech just got a bill of $229,657 as its share of the legal fees and costs while it was a plaintiff in the Big East vs. ACC lawsuit. In addition, Tech may continue to pay the Big East some of the other membership fees it would have owed if it stayed a Big East member.

Harmless error in baseball and law

From Findlaw, Michael Dorf in this article compares the like notions of "harmless error" in the rules of baseball and the common law.

Somehow, I doubt this will achieve the cult status of the "The Common Law Origins of the Infield Fly Rule," 123 U. Pa. L. Rev. 1474 (1974), the best-known law and baseball work known to law review nerds everywhere but unfortunately not (according to Ernie) available online.

The Amway-P&G feud leads to ruling on privilege to republish court documents on the Internet

In Amway Corp. v. Procter & Gamble Co., the Sixth Circuit in an opinion by Judge Batchelder, joined by Judge Clay, and with District Judge Schwarzer concurring separately, held that under Michigan's statutory "fair reporting privilege," Procter & Gamble and its law firm, Cincinnati-based Dinsmore & Shohl, could not be liable for the posting of the text of pleadings on the Internet of complaints filed in court with allegations against Amway.

The memorable opinion begins: "Recitation of the extensive and hate-filled history between P&G(1) and Amway(2) would take a writing as long as both the Old and New Testaments and involve at least one of the Good Book’s more prominent players. Although each side would likely argue, if given the chance, that its opponent was in the garden advising the serpent when Eve took her first bite of the apple, for our purposes we need only go back to the 1970s and Satan’s rumored more recent activity with and interest in soap products."

Two new law schools in Western North Carolina?

Via Law.com, this story from MSNBC reports that there both Elon University and UNC-Charlotte are working on plans for new law schools.

In recent months, there has been news about a new law school in Lynchburg, Virginia, and another in South Carolina, now these two in North Caroline. Maybe the founders of the Appalachian School of Law in Grundy were ahead of the curve.

John Edwards in Bristol today

I got some notices that U.S. Senator, former trial lawyer, and current presidential candidate John Edwards is in downtown Bristol today for some kind of rally in the park down the street by the courthouse, starting in about at 11:30 am. Perhaps this was sent to me because of my membership in the Virginia Trial Lawyers Association. (Unlike ATLA, VTLA does not require as a condition of membership that the applicant is only a plaintiff's lawyer.) The only other Democrat running for president who made an appearance this year in Southwest Virginia was Bob Graham, who since quit the race. North Carolina is not far from here but I doubt that John Edwards is very well-known in this area.

"No Child Left Behind" as potential political liability for President Bush

Today's Washington Post has this article which begins, "President Bush's No Child Left Behind education program -- acclaimed as a policy and political breakthrough by the Republicans in January 2002 -- is threatening to backfire on Bush and his party in the 2004 elections," and explains that "Bush is being criticized in swing states such as West Virginia for not adequately funding programs to help administrators and teachers meet the new, and critics say unreasonable, standards."

In Virginia, the fat will hit the fire this coming spring for graduation standards, when the Standards of Learning require tests to be passed for graduation. Last week, it was reported that the New York education authorities were lowering the standards on the mandatory tests for graduation, according to this NY Times article, titled "New York to Lower the Bar for High School Graduation," and which begins "New York State's education commissioner, Richard P. Mills, said Wednesday that the state would loosen the demanding testing requirements it has imposed for high school graduation in recent years, including the standards used to judge math proficiency."

"The ACC can run but it cannot hide"

Rule of Reason has this post on the dismissal for lack of personal jurisdiction of the NC-based Atlantic Coast Conference from the Big East lawsuit filed in a Connecticut state court, after which ruling the Connecticut Attorney General Blumenthal declared, ""The ACC can run but it cannot hide."

Still more on law schools suing over military recruiters tied to federal money

The Curmudgeonly Clerk caught my ramblings on this subject, and wrote even more on the subject in this interesting post, which among other things describes the lengthy disclaimer one law school is using to comply with the law under protest.

How will they distinguish the Agricultural Adjustment Act case from 1942?

In Wickard v. Fillburn, 317 U.S. 111 (1942), the Supreme Court held that a farmer who grew wheat for his own consumption (more or less) was nevertheless engaged in interstate commerce enough to fall legitimately within the scope of the Agricultural Adjustment Act.

Now, some lawyers in California are arguing that Congress does not the power to regulate marijuana grown for intrastate consumption, according this report, via CrimLaw.

Virginia criminal laws to be revamped

Via CrimLaw, this AP article reports on the efforts of Virginia's Crime Commission to revamp the criminal law in Virginia.

Wahoo on the Eleventh Circuit

This month's Twenty Questions on How Appealing features Judge Stanley F. Birch, Jr., of the U.S Court of Appeals for the Eleventh Circuit, who says (among many, more profound things) that he follows the fortunes of the Virginia Cavaliers.

Proud to make the honor roll, sad to see your blog go

As Ernie Svenson describes in more detail here, the author of ethicalEsq? is giving up his blog. The background on David Giacalone and his blog are here.

David is someone who has read and thought and written about some of the weird stuff on this blog, and I'm sad and proud that among his parting shots, he listed this blog on the ethicalEsq? "honor roll."

Jet ski case to be reheard, Bashman will be watching

As described here in this Howard Bashman post, the Fourth Circuit will rehear en banc the case of the jet skiier who went over the Robert Byrd dam.

Judge Niemeyer's dissent sparked a debate among Bashman readers, described here, on the issue of how to resolve conflicting lines of precedent from within the same circuit.

Coaches sue parent for defamation

Here is the Virginian-Pilot's version of the story about the three basketball coaches who have brought suit against the father of one of their players for defamation, after he has criticized them repeatedly to the School Board and threatened to sue the Board if the coaches were not fired.

As you might expect, the case caught the attention of Overlawyered, as shown here.

Newport News police cars missing an ''i'' in ''Virginia''

The headline says it all in this story about police cars with decals that say "Virgina."

The "tan man" used by the FBI for the evidence on Richmond city council member

Mark Holmberg has this column on the wild character used by the FBI to record evidence against Richmond political figures now facing prosecution in the E.D. Va.

Appalachian Regional Commission conference on telecommunications in Abingdon this week

As described here, this week Abingdon's Southwestern Virginia Higher Education Center will be the site for the annual conference of the Appalachian Regional Commission, with a focus on the role of telecommunications in the development of the Appalachian Region, which in Virginia includes (according to the government) the Counties of Alleghany, Bath, Bland, Botetourt, Buchanan, Carroll, Craig, Dickenson, Floyd, Giles, Grayson, Highland, Lee, Montgomery, Pulaski, Rockbridge, Russell, Scott, Smyth, Tazewell, Washington, Wise, and Wythe, and the Cities of Bristol, Buena Vista, Covington, Galax, Lexington, Norton, and Radford.

Tennessee man nabbed by Nigerian scam

The Kingsport paper (registration required) has this article describing how a man lost $6,300 in a version of the Nigerian scam.

The man posted an ad to sell his dog for $2,500. He was contacted by someone from Nigeria, who said that the man would be sent a cashier's check for $6,300 from someone who owed the Nigerian money, out of which the man could keep the money for the dog and send the rest back to Nigeria. At the last minute, the Nigerian wrote that the dog could not be shipped to Nigeria because of customs restrictions, and that the man should send on the rest of the money. The cashier's check turned out to be counterfeit.

A law enforcement officer quoted in the article said "be wary of anything from Nigeria."

As I recall, it is written in this book that scam artist Martin Frankel is among those who have been taken in by some version of a Nigerian scam. The book about Frankel is a great book.

More on the Commonwealth's Attorney race in Wise County

This article in the Bristol paper about the race for the position of Commonwealth's Attorney for Wise County raises the issue about why one of the candidates lost her job as an assistant Commonwealth's Attorney. Democrat Karen Bishop's old boss, Republican Joe Carico, says that she was fired after he found out she had filed motion to expunge the criminal record of drug dealer. Republican Chad Dotson has declared that he is the only candidate who has "never attempted to expunge the record of a convicted drug dealer."

In the article, Dotson also mentioned his daughter Reagan, whom I understand was named for Ronald Wilson Reagan, and not for King Lear's daughter - and thus I predict she won't have sisters named Cordelia and Goneril. (Anyhow, Shakespeare spelled it "Regan," and I have no doubt that young Reagan is of an entirely different character than the middle daughter of the play.)

Loser's appeal no bar to award of costs

In Singleton v. Virginia Department of Correctional Education, Judge Jones ruled that the pendency of the plaintiff's appeal was no bar to going forward with an award on the defendants' bill of costs.

Maybe the defendants would be willing to drop their claim for costs if the plaintiff would drop her appeal.

Judge Jones sets aside defaults in DirecTV cases

In DirecTV v. Adkins, Judge Jones of the W.D. Va. granted the motions of some of the defendants in one of the Virginia DirecTV suits relief from their default under Rule 55. The defendants were represented by Carl McAfee from Norton. The judge mentioned in a footnote that more that 8,700 defendants have been sued across the country by DirecTV. For earlier posts about this litigation, see here and here.

Link observed between choice of medical school and malpractice claims

Via the VTLA Eclips, graduates from some medical schools are more often sued for malpractice than graduates of other schools, according to this report.

Perhaps this will be a new consideration in the U.S. News review of schools - how often do the grads get sued.

Library rule requiring patrons to wear shoes pass constitutional muster

In Neinast v. Board of Trustees of the Columbus Metropolitan Library, the Sixth Circuit in an opinion by Judge Julia Smith Gibbons decided that the plaintiff, who "was asked to leave the Library for failure to comply with the Library’s requirement that patrons wear shoes while on its premises," had not suffered any violation of his constitutional rights, holding that "[t]he Library regulation survives rational basis review because the regulation provides a rational means to further the legitimate government interests of protecting public health and safety and protecting the Library’s economic well-being by seeking to prevent tort claims brought by library patrons who were injured because they were barefoot."

As Sneaking Suspicions points out here, however, who would have thought that what might you walk on around a library would be so nasty?

State enjoined from regulating voice-over-IP

Via Findlaw, this AP article says that a federal court has entered an injunction prohibiting the State of Minnesota from regulating voice-over-IP provider Vonage like a regular telephone company. The article notes that Vonage "advertises unlimited calls to anywhere within the United States and Canada for $39.99 per month."

VoIP is one of those things that I wonder whether the regular phone companies will either jump on the bandwagon or figure out how to suppress it or both. A consultant in this NY Times story from October 12 is quoted as saying, "VoIP is going to change everything," while another says that "The big telecom companies worry that VoIP could completely undermine their business within 12 months." A fellow I know in Bristol told me the other day that his office has voice-over-IP. It won't work when the server is down, but then I generally start thinking about going out to hit some golf balls when the server is down, anyway.

The Times article explains what is VoIP: "With VoIP, when someone speaks into the telephone, or microphone, the sounds are broken down into ones and zeros, sorted into packets of information, and then shot across the worldwide network of fiber lines, just like e-mail messages. At the designated end points, the packets of binary code are reassembled and turned back into sounds. In the regular phone network, calls initially pass over less efficient copper wires and the phone companies must maintain dedicated connections between users, instead of just mixing the information in with the rest of the Internet."

The Times article goes on to say, regarding the phone companies' response: "On the one hand, they are rapidly building the technology into their own offerings. MCI expects to have made a complete transition to VoIP by 2005. AT&T will offer a major digital voice service to businesses in 2004 and has begun a consumer pilot program, based mainly in New Jersey.

On the other hand, the regional Bell companies are arguing for new regulations that would tie up VoIP companies that let consumers make calls to customers on the regular phone network, as Skype hopes to do soon.

According to critics, VoIP companies receive an unfair advantage because the F.C.C. and state governments regulate them as information, not phone, companies because they rely completely on the Internet. That frees them from multiple tax and regulatory commitments, like directly paying into the federal "universal service fund" that subsidizes rural telephone access. Some state governments are considering that issue; in Minnesota last week, a federal judge overruled a decision by the state's Public Utilities Commission to force Vonage and other VoIP companies to submit to the state's traditional phone regulations. The F.C.C. and Congress will almost certainly take up the issue soon, too."

On strict scrutiny and grandparents' visitation rights

I don't know anything about domestic relations law, but one recurring question I get from a few people is what are the visitation rights of grandparents. Via Findlaw, in this opinion, the Iowa Supreme Court declared the state's grandparents' visitation rights statute unconsitutional, as the statute was not drawn narrowly enough to pass muster as an infringement on a fundamental right.

New tenant comes back from vacation, all her stuff has been sold

Yesterday's Roanoke paper had this article on travails of a young woman who moved all her possessions into her new apartment and went on vacation for a month, only to find on her return that the landlord sold all the stuff for $150, thinking it was leftovers from the prior tenant.

I guess these were bona fide purchasers, if this was a U.C.C. case.

Trying to move another "terrorist" case to the 4th Circuit

This column from the Village Voice mentions that the Department of Justice is trying to get the Jose Padilla case transferred from the Second Circuit to the Fourth Circuit:

"Ashcroft's Justice Department is striving mightily to persuade the Second Circuit that the case should be transferred to the Fourth Circuit Court of Appeals in Virginia, on jurisdictional grounds. Regarded by many lawyers, as well as civil libertarians, as the most conservative of all the circuit courts (which are just one level beneath the Supreme Court), the Fourth Circuit has already bowed to the president in the case of Yaser Hamdi. He is another American citizen being held indefinitely, without charges, and without access to his lawyer in a military brig. The Fourth Circuit has ruled that commander in chief Bush has the power to haul away an American citizen anywhere—at O'Hare, in Afghanistan, or on any American street. All Bush has to do is call him or her an 'enemy combatant.'"

Expert on the smells of the '60s testifies at trial of Dr. Knox

In this update on the trial of Dr. Cecil Knox in the W.D. Va. in Roanoke, one witness is reported as saying that "she certainly would know the smell of pot because she's 'from the '60s.'"

The article on the trial also reported on the voodoo bear and the dead squirrel:

"The stuffed brown bear bearing a flag with the first name of federal prosecutor Rusty Fitzgerald made its appearance during the early weeks of the trial. It was seized during a raid at Knox's practice, Southwest Virginia Physical Medicine and Rehabilitation, in February 2002. Fitzgerald introduced the bear as evidence in the early weeks.

Fitzgerald questioned former practice employee Tiffany Durham about the stuffed animal, which also had pins sticking in it and a target drawn on its head. Durham testified that the daughter of another former employee of the practice wrote his name on the flag. (The daughter was not charged in the case.)

Chief U.S. District Judge Samuel Wilson interjected.

"You didn't think you were doing Mr. Fitzgerald any harm by sticking pins in the stuffed animal?" Wilson asked.

Durham replied that she didn't think she was doing any harm. Fitzgerald was sick one day, but no link to the stuffed bear was ever established.

The squirrel carcass

Former practice employee Donna Stone first raised the specter of the dead squirrel in Knox's office. Durham later confirmed the report of the dead squirrel in Knox's office and elaborated on its demise.

She said she followed the smell to Knox's office, where the squirrel must have crawled up into one of the arms of a sweater that was lying on the couch.

Durham thought that at some point, someone must have mistakenly sat on the squirrel and squashed it. The squirrel remained in the sweater arm until Durham discovered it.

During a break in proceedings days later, lawyers from both sides of the case acknowledged that squatting squirrels are an underreported menace."

Criminal records don't deter Buchanan County candidates

The Roanoke paper reports here on the Board of Supervisors races in Buchanan County, where two of the candidates have convictions for misappropriation of public funds.

On the reasonable man and stuff you can't say

Tim Sandefur has this delightful post which quotes at some length from a description of that legal animal known as "the reasonable man" and further speculation on the absence in law of a "reasonable woman," adding as to the latter an immediate disclaimer (in which I join fully).

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.