E.D. Va. prosecutors blast Judge Lee's rulings on appeal of the Lentz case

According to this AP report, the lawyers for the U.S. Attorney's office in the Eastern District of Virginia have harshly criticized the rulings of the trial court in the kidnapping case of Jay Lentz. The trial judge found, among other things, deliberate misconduct by one of the trial counsel for the government, in a case where improper evidence somehow turned up in the jury room for their deliberations.

Hoping for an employee discount at the Cheese Shop

According to this report ("Study shows W&M faculty looking for other jobs," 2/6/2004) in the Norfolk paper, a recent survey found that one-third of the faculty at the College of William & Mary have looked for other jobs in the last couple of years.

Senator Robb back in the news

I noted that former U.S. Senator and Virginia Governor Charles Robb was among those named by President Bush to the panel to investigate intelligence failures leading up to the war with Iraq. The Richmond paper describes here and the AP describes here the background of Senator Robb, who is still identified in part as the "son-in-law of the late President Lyndon Johnson."

Senator Robb's story is pretty well-known to Virginians: Marine marries the President's daughter, becomes a lawyer, gets elected to a succession of greater offices, gets bored with it all, gets run out of town for a scandal involving a beauty queen, lives happily ever after.

In his last successful campaign, Senator Robb defeated Iran-contra figure Oliver North, of whom Robb declared that North was a "document-shredding, Constitution-trashing, Commander in Chief-bashing, Congress-thrashing, uniform-shaming, Ayatollah-loving, arms-dealing, criminal-protecting, résumé-enhancing, Noriega-coddling, Social Security-threatening, public school-denigrating, Swiss-banking-law-breaking, letter-faking, self-serving, election-losing, snake-oil salesman who can’t tell the difference between the truth and a lie," according to Bartleby's.

U.S. drops charges in Shenandoah Nat'l Park double-murder case

The Roanoke paper reports here ("U.S. to drop Rice's charges," 2/7/2004), the Richmond paper reports here ("U.S. moves to drop Rice charges for now," 2/7/2004), and the Washington Post (registration required) reports here ("Charges Dropped In Hikers' Slayings," 2/7/2004) that federal prosecutors are dropping all charges against the defendant accused of murdering two women in the Shenandoah National park.

Carroll County Courthouse tragedy

This column from Roanoke.com provides a summary of the shootout in 1912 at the Carroll County courthouse.

Lawyers in Super Bowl halftime lawsuit - do as I say, not as I do

Blog 702 has this post with a link to this page from the website of the Tennessee lawyer who filed the class action on behalf of all the victims of the Super Bowl halftime show.

The Supremes' Greatest Hits

Tim Sandefur is working out here the 10 most important Supreme Court opinions every lawyer should read (or something like that).

I haven't the breadth and depth to answer the question, but I can say which ones have the greatest effect on my work in section 1983 cases:

1. Monroe v. Pape, 365 U.S. 167 (1961)
2. Monell v. New York City Dept. of Social Services, 436 U.S. 658 (1978)
3. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274 (1977)
4. Harlow v. Fitzgerald, 457 U.S. 800 (1982)
5. Malley v. Briggs, 475 U.S. 335 (1986)
6. Graham v. Connor, 490 U.S. 386 (1989)
7. Heck v. Humphreys, 512 U.S. 477 (1994)
8. City of Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981)
9, 10, 11, 12. Pickering/Connick/Elrod/Branti

Also, my top two personal favorites:

1. Garcia v. SAMTA - a case I studied to death in college, only to find it on a law school exam the next fall, resulting in a book award
2. Stanley v. U.S. - what I once wrote about this case got me onto the Law Review and helped get me into a U.S. district court clerkship

Protecting our troops

Incredibly, with a local reserve unit about to deploy Iraq, local people have been raising money to buy for them bullet-proof vests. The failure to provide this equipment would be quite a scandal, and Republican congressional candidate Kevin Triplett is trying to pin the blame on Congressman Boucher, as reported here ("Ninth District hopeful Kevin Triplett lashes out at Boucher," 2/7/2004) in the Bristol paper. On Thursday, for what it's worth, military officials gave assurances that the reservists from Southwest Virginia would all be fitted with the proper gear before leaving Fort Dix, New Jersey, according this report ("Officials say soldiers assured of receiving body armor ," 2/6/2004) in the Bristol paper. Senator Allen's office put out this press release that he had been reassured by the Defense Department that the Southwest Virginians would get their body armor.

Clark and Edwards come to Bristol

The Bristol paper reports here ("Wesley Clark cites war as "last resort" of foreign policy," 2/7/2004) and the Kingsport paper (registration required) reports here ("Clark serves up red meat rhetoric," 2/7/2004) on the Wesley Clark visit to Bristol, while the Bristol paper reports here ("Edwards: 'We can't change this country without you,'" 2/7/2004) and the Kingsport paper (registration required) reports here ("Edwards campaigns in Bristol ," 2/7/2004) on the John Edwards visit to Bristol on Friday.

The Norfolk paper reported here ("Clark pulls ads, puts most of his focus on Tennessee," 2/6/2004) on Friday that Clark was giving up somewhat on Virginia and focusing more on Tennessee, to save money, particularly since TV ads in Northern Virginia cost a lot of money. Earlier in the week, former Governor Baliles endorsed Senator Kerry, as reported here by the AP.

Oops

This correction by the Fourth Circuit reads as follows: "The court amends its opinion filed January 23, 2004, as follows: On page 4, line 6 -- the phrase 'term of sixty years' is amended to read 'term of sixty months.'"

Another corner heard from - SENATOR Warner takes on state budget

U.S. Senator John Warner is on board with a group that says new state taxes in Virginia are necessary, according to this report in the Richmond paper and this report in the Washington Post.

Primary fever strikes Southwest Virginia, Northeast Tennessee

The Richmond paper reports here ("Southwest eager for primary," 2/6/2004) and the AP reports here ("Clark, Edwards campaign in southwest Virginia," 2/6/2004) on the excitement in Southwest Virginia about the Virginia presidential primary. The Roanoke paper reports here ("Democrats fear storm of confusion at primary," 2/6/2004) that it will be possible to vote for the candidate of your choice and attend a monster truck show on the same day in Roanoke. This article and this article say the Kerry, Edwards, and Clark campaigns were on the loose today in Eastern Tennessee.

Supposedly, Wesley Clark is having a rally right now down the street from here on the Tennessee side at the Stateline Grille.

With primaries on both side of the line, Bristol is in fact the center of the political universe this week, at least until Tuesday.

Another possible Republican candidate for Lt. Governor

The Gainesville Times reports here ("Connaughton considers bid for lt. gov. ," 2/6/2004) that the chairman of the Board of Supervisors of Prince William County may run for the Republican nomination for lieutenant governor in 2005.

Delegates want Va. S.Ct. to change rule to encourage electronic filing

The Coalfield Progress reports here on this House resolution submitted by Delegates Phillips and Kilgore asking the Virginia Supreme Court to change Rule 1:17 to eliminate the language that says ""by the consent of the parties and agreement of the clerk" and replace it with "by election of any party to the litigation." The resolution notes that "the Office of the Executive Secretary of the Supreme Court of Virginia is now preparing for a statewide electronic filing system to be enabled during the next year." (That's news.)

The change in the Rules might be a noble concept, but I found out the other day that there are some lawyers in Bristol, Virginia, who have no fax machines, much less e-mail or Internet access. I'd say that's the case for a few lawyers in every jurisdiction in the state. Would it be beyond the bounds of zealous advocacy to require electronic filing of such a lawyer on the other side of a case?

No new birth certificates for children born in Virginia adopted elsewhere by gay couples

I'm not entirely sure what this case is about, but I think the article says that Judge Johnson of the Circuit Court for the City of Richmond agreed with the Attorney General's office that new birth certificates should not be issued for children born in Virginia who were adopted by out-of-state same sex couples.

I never heard that anybody could get their birth certificates re-written, that sounds like some kind of scam. It sounds like rewriting history.

On state lines and horses' behinds

Rory Perry has a link to this delightful speech by an Australian judge who explains why the width of the booster rockets for the space shuttle is limited to twice the width of a horse's behind (the historic width of the railroads, including existing tunnels still in use), as an introduction to the problems of integration national legal practices in Australia to overcome entrenched local differences among the states there.

We are on the state line here in Bristol, and once upon a time I encounter stuff that I can't understand over on the other side, but I wouldn't attribute it to horses' behinds.

Ernie on the use of magistrate judges and summary judgment motions

Ernie the Attorney has this post regarding the use of magistrate judges in his ongoing "law clerk" chronicles.

Ernie asks: "But why would a district judge routinely refer dispositive motions to a magistrate for decision? Whoever loses the motion before the magistrate is probably going to appeal to the district judge, who will have to conduct de novo review of the merits of the motion. This practice seems like a complete waste of everyone's time: the litigants, the lawyers, and the magistrate."

Ernie goes on to say that his judge would not grant motions for partial summary judgment unless they were sure-fire winners or unless they would save time at trial. Of course, all of my motions meet that standard.

Then again, maybe not. One time I filed for summary judgment on some issue about 10 years ago and when the judge wouldn't rule I told him I needed to at least know which way the wind was blowing, a figure of speech which was very poorly received. On the top 10 list of stupidest things I've said or done as a lawyer, that would make the list.

Woman files class action as representative for all who saw Super Bowl halftime show

This delightful post from Shots Across the Bow and this post from Instapundit and this post from Overlawyered tell the story of a Knoxville woman who has filed a class action on behalf of 80 million Americas who watched the Super Bowl and suffered emotional distress because of the halftime show.

This post from the Trademark Blog makes the point that the last thing we need is for the law to recognize an implied contract between TV and TV viewers.

New standing order on CM/ECF for the W.D. Va.

Here is the new standing order for the W.D. Va. on case management and electronic filing - which a reader from Roanoke pointed out to me earlier this week.

The order says, among other things, that "[a]ll attorneys appearing before this Court on or after December 13, 2004, shall be required to file all documents electronically, unless otherwise authorized by the presiding judge or the electronic filing procedures."

I saw a memo last summer listing the members of a committee for electronic case filing in the W.D. Va. The members of the committee at that time (July 9) were stated as Chief Judge Wilson, Magistrate Judge Sargent, Jeremy Carroll of Danville, Henry Keuling-Stout of Big Stone Gap, the Clerk John Corcoran, Norman Kinnier from Lynchburg, AUSA Julie Dudley, Deputy Clerk Patti Nelms, Bill Eskridge, Bill Poff, and Gary Kendall from Charlottesville. Of the lawyers, I know that Mr. Poff is a real cyberdog, I don't know about the others, but maybe a panel of tech-savvy people is not what was desired.

I imagine the procedures once promulgated will be something like these I have been studying from the Southern District of Ohio.

Amendment to rule for production from non-parties

This week posted on the Virginia judiciary website was an amendment to Rule 4:9:

Rule 4:9. Production of Documents and Things and Entry on Land for Inspection and Other Purposes; Production at Trial.

(c) Production by a Person Not a Party.
(1) Subpoena duces tecum issued by clerk of court. Upon written request therefor filed with the clerk of the court in which the action or suit is pending by counsel of record for any party or by a party having no counsel in any pending case, with a
certificate that a copy thereof has been served pursuant to Rule 1:12 upon counsel of record and to parties having no counsel, the clerk shall, subject to paragraph (c-1), issue to a person not a party therein a subpoena duces tecum which shall command the person to whom it is directed, or someone acting on his behalf, to produce the documents and tangible things (including writings, drawings, graphs, charts, photographs, phono-records, and other data compilations from which information can be obtained, translated, if necessary, by the respondent through detection devices into reasonably usable form) designated and described in said request, and to permit the party filing such request, or someone acting in his behalf, to inspect and copy, test, or sample any tangible things which constitute or contain matters within the scope of Rule 4:1(b) which are in the possession, custody or control of such person to whom the subpoena is directed, at a time and place and or the period specified in the subpoena; but, the court, upon written motion promptly made by the person so required to produce, or by the party against whom such production is sought, may (1) quash or modify the subpoena if it is unreasonable and oppressive, (2) condition denial of the motion to quash or modify upon the advancement by the party in whose behalf the subpoena is issued of the reasonable cost of producing the documents and tangible things so designated and described or (3) direct that the documents and tangible things subpoenaed be returned only to the office of the clerk of the court through which such documents and tangible things are subpoenaed in which event, upon request of any party in interest, or his attorney, the clerk of such court shall permit the withdrawal of such documents and tangible things by such party or his attorney for such reasonable period of time as will permit his inspection, photographing, or copying thereof.
(2) Subpoena duces tecum issued by attorney. In a pending civil proceeding, a subpoena duces tecum may be issued by an attorney-at-law as an officer of the court if he is an active member of the Virginia State Bar at the time of issuance. An
attorney may not issue a subpoena duces tecum in those civil proceedings excluded in Virginia Code § 8.01-407. An attorneyissued subpoena duces tecum must be signed as if a pleading and be accompanied on the subpoena by the attorney’s address, telephone number and Virginia State Bar identification number. A copy of any attorney-issued subpoena duces tecum must be mailed or delivered to the clerk’s office of the court in which the case is pending by the attorney on the day of issuance with a certificate that a copy thereof has been served pursuant to Rule 1:12 upon counsel of record and to parties having no counsel. If time for compliance with an attorney-issued subpoena duces tecum is less than fourteen (14) days after service of the subpoena, the person to whom the subpoena is directed may serve on the party issuing the subpoena a written objection setting forth any grounds upon which such production, inspection or testing should not be had. If an objection is made, the party issuing the subpoena shall not be entitled to the requested production, inspection or testing, except pursuant to an order of the court in which the civil proceeding is pending. If an objection is made, the party issuing the subpoena may, upon notice to the person to whom the subpoena is directed, move for an order to compel the production, inspection or testing. Upon a timely motion, the court may quash, modify or sustain the subpoena as provided above in subsection (c)(1) of this Rule.

Wasn't all this already in the Rules somewhere, or am I thinking of FRCP 45?

Still the champ

In Harris v. Holland, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams, Motz, and King, with Judge Williams dissenting, affirmed the ruling of Judge Glen Williams against the UMWA Funds on a disability pension claim.

I think Judge Glen Williams knows more about these claims that anyone.

Six more weeks of?

Punxsatawney Phil saw his shadow, meaning six more weeks of winter. In an unrelated development, Judge Jones denied in this opinion the last round of pre-trial motions to dismiss in the Gilmore and Church cases, meaning six more weeks of trial.

Judge Richard Williams overturns Virginia abortion law

Just in time for the General Assembly session, Judge Richard Williams of the E.D. Va. has overturned the new partial-birth abortion law from last year's General Assembly session, as reported here on lifenews.com, here on newsmax.com, in this article ("Abortion curbs ruled illegal," 2/3/2004) from the Richmond paper, in this article ("Va. Late-Term Abortion Ban Struck Down," 2/3/2004) from the Washington Post, this article ("Federal judge overturns ban on late-term abortion in Va.," 2/3/2004) in the Norfolk paper, and this AP article.

P.S. The Attorney General's statement is here, and the Lieutenant Governor's statement is here.

Satellite-based internet service available in parts of western Virginia

This press release declares the availability of a satellite-based internet service for some rural areas of western Virginia, with connection speeds at 400 kbps, though the Rockbridge Global Village.

Preliminary caseload statistics for Virginia state courts

Posted on the Virginia judiciary website are preliminary statistics for the circuit courts and the district courts.

Southwest Virginia chools fear claims of employees who got detention?

The Bristol paper reported here ("School systems targets for alleged violations of Fair Labor Standards Act," 2/1/2004) over the weekend that some local school systems are worried about overtime claims under the Fair Labor Standards Act.

I never heard of an FLSA against a school system in Southwest Virginia, more common are claims of emergency workers - rescue and law enforcement workers.

Court-appointed lawyers in Virginia doing a bad job?

The Richmond paper has this report ("Va. cited for weak counsel," 2/2/2004) on a study which concludes that the lawyers receiving appointments by Virginia's state courts to represent the indigent are doing a bad job.

Environmentalists don't like proposed coal-burning power plant for Southwest Virginia

As you might expect, the environmental lobby has nothing good to say about the proposed new coal-burning power plant to be built in Southwest Virginia, as reported here ("Coal plant derided as dinosaur," 2/2/2004) in the Roanoke paper.

Doctors come to Richmond to cure what ails medical malpractice law in Virginia

The Roanoke paper reported here ("Doctors to swarm Richmond," 2/1/2004) on the lobbying efforts of the medical establishment for reform in the law of medical malpractice in Virginia.

The antidote for bad legal writing - cash prizes?

On Instapundit, Professor Reynolds describes here a hefty prize offered for a student legal writing contest at the law school in Knoxville.

I can't say that we had any cash prizes for legal writing at my law school, or that we had at honors banquet, or that we had any banquets. (There was a write-on contest for the law review, which is how I made it.)

I can't say that anything I learned anything about writing in law school, either. I have some funny personal rules about writing, they must be funny because everyone laughs when they hear them, and apparently the funniest of these is that every paragraph in the brief must have 3, 4, or 5 sentences, never 2, never 6. This rule is was not part of the law school curriculum, but instead is sort of a relic of the "hamburger paragraph" taught in Ms. Boggs' 10th grade English. (But my favorite high school writing story is this - Coach Borden telling the class in 9th grade: "You people don't know how to edit! You look at the paper and say to yourself, 'These are my words, I love them!'")

Retrial in the Gilmore and Church cases starts this week

The AP has this story on the retrial of the Gilmore and Church cases, which begins next week in federal court in Abingdon and is scheduled to last for six weeks. The cases involve the murder of three people in Tazewell County in 1989.

Virginia legislature delays consideration of teenager executions

As reported here ("Panel defers to court on the execution of juveniles," 1/31/2004) in the Norfolk paper, a committee of the House of Delegates voted down a proposal to ban the death penalty for juveniles, largely because some legislators preferred to see the outcome of the U.S. Supreme Court case involving the constitutionality of such executions.

If the Atkins case is any indication, however, the legislators' failure to act will be used by the court as evidence of the evolving views of the death penalty that would justify some new rule against juvenile executions. In Atkins, the Supreme Court looked to the deliberations of "the American public, legislators, scholars, and judges" between 1989 and 2002 over executions of the mentally retarded, noting in particular "the dramatic shift in the state legislative landscape that has occurred in the past 13 years." Virginia legislators might have wanted to stand up and be counted, one way or the other, rather than wait for the Supreme Court to figure out which way the legislative wind is blowing, assuming that is now the measure of what is cruel and unusual under the Eighth Amendment.

Virginia Supreme Court reconsiders cross-burning law on remand

Last year in the case of Virginia v. Black, the U.S. Supreme Court held that Virginia's statute criminalizing cross-burning could be constitutional, and sent the case back to the Virginia Supreme Court, for reinterpretation of the language in Va. Code § 18.2-423 which provides: "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." This article ("Cross-burning case back to state court for review," 1/31/2004) in the Norfolk paper describes the background of the case, which was reargued earlier this month before the Virginia Supreme Court.

No red light cameras in Southwest Virginia?

The AP reports that a House of Delegates committee voted down legislation that would allow all Virginia localities to employe red light cameras to photograph and ticket red light offenders. Currently, such cameras have been tried only in some Northern Virginia localities authorized by special legislation.

More on the retrials of Burrow and Knox

Today's Roanoke paper has this article ("Burrow pleads not guilty to new charges," 1/31/2004) and the Richmond paper has this article *"Not-guilty plea given in D-Day fraud trial," 1/31/2004) on the not guilty plea from Richard Burrow in the D-Day monument fundraising case. The Roanoke paper also has this article ("Pain doctor, associates' new trial to be in Roanoke," 1/31/2004) saying the retrial of Dr. Cecil Knox will be in Roanoke, and not elsewhere as some earlier reports suggested.

Incremental approach for I-81 transformation proposed

Republican Delegate Chris Saxman from Staunton has proposed a bill that would prohibit the use of tolls and separate truck lanes on Interstate 81 through Western Virginia before a test project using available funds is completed, as reported here ("New bill would throw out toll plan," 1/31/2004) in the Roanoke paper.

Meanwhile, on up the interstate in Pennsylvania, the speed limit has been lowered back to 55 on Interstate 81 in the Carlisle area, as reported here ("Speed limit on I-81 to drop to 55 near Carlisle tomorrow," 1/29/2004) in the Harrisburg, Pennsylvania paper. I wonder why no one is proposing that in Virginia.

ALJ rules for whistleblower against Southwest Virginia bank under Sarbanes-Oxley

The Roanoke Times reports here ("Judge rules act protects whistle-blower," 1/31/2004) on the ruling in favor of a whistleblowing employee and against the Bank of Floyd on a claim brought before the Department of Labor under the Sarbanes-Oxley Act. The case is "said to offer the first decision related to whistle-blower protections promised by the Sarbanes-Oxley Act."

Bruce Shine of Kingsport represented the employee, Laura Effel of Flippen Densmore represented the bank.

Justice Lemons on Chief Justice Marshall and the anniversary of Marbury v. Madison

From this month's VBA News Journal, here is a speech delivered by Justice Donald Lemons of the Virginia Supreme Court last summer on Chief Justice John Marshall and the bicentennial of Marbury v. Madison.

As a summer law clerk in 1988, some case or other involved the possibility of filing for a writ of mandamus, which led me to recall the facts of Marbury v. Madison to the lawyer whose project it was. He said, hey, I never learned that in law school. I told him I didn't, either, I learned those facts in Mr. Feiler's eighth grade civics class.

Va. legislators on FOIA - do as we say, not as we do?

The Washington Post reports here ("State May Weaken Open-Meetings Law," 1/30/2004) and the Richmond Times-Dispatch reports here ("Bill excuses assembly from open-meeting law," 1/29/2004) on proposals to limit the application of the Freedom of Information Act to the activities of the Virginia General Assembly.

Bizarro world continues since Lawrence v. Texas

Since the Supreme Court's decision in Lawrence v. Texas, we have the Massachusetts case striking down the laws against same-sex marriage, the Florida case upholding a ban on adoption by homosexuals, the Kansas case upholding greater punishments for same-sex child abuse, and a case filed in Utah by some would-be polygamists (described here on law.com).

A year ago, I would have bet all the money in my pocket that Lawrence would be decided the other way, the Massachusetts case would be decided the other way, the Florida case would be decided the other way, the Kansas case would be decided the other way, and that no one would ever cite even a dissenting opinion by Justice Scalia in support of polygamy.

Absurd comparison of the recess appointments of Judge Gregory and Judge Pickering

This article comparing the recess appoints of Judge Roger Gregory of the Fourth Circuit and Charles Pickering is way, way off the mark. Judge Gregory was nominated by two presidents of different parties, a one of a kind, history-making example of a bipartisan choice for the bench. I don't believe that any of the Democratic candidates for President if elected will give much thought to renominating Judge Pickering.

Transcript in the municipal telecommunications case

Here is the transcript from the municipal telecommunications case, the argument of which I went to observe earlier this month, having filed three briefs for amici curiae in the case.

As I noted earlier, one memorable exchange was this:

MR. STRAUSS: . . . Our position in this case is straightforward and I can state it very simply. Gregory against Ashcroft applies in circumstances where the statutory language is ambiguous. The Court has said that three times, including Congress had said, for example, any corporation, which might leave some doubt whether Congress meant only private corporations and not municipal corporations.
QUESTION: But it doesn't mean any fish, for example. I mean, there are a lot of things it doesn't mean.
MR. STRAUSS: I -- I wouldn't -- I wouldn't -- I guess it doesn't mean any fish, Justice Breyer, but of the -- I think it has a very broad meaning.

More on Dickenson County wireless internet

Last year, the General Assembly passed and Governor Warner signed a new law enabling counties to establish wireless networks. This press release describes the Dickenson County Wireless Internet Project.

My strongest endorsement in this election year - for FRAP 32.1

Howard Bashman has the lowdown on the proposed Rule 32.1 of the Federal Rules of Appellate Procedure regarding citation to unpublished appellate decisions.

Proposed Rule 32.1 says this:
Rule 32.1. Citation of Judicial Dispositions
(a) Citation Permitted. No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like, unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or other written dispositions.
(b) Copies Required. A party who cites a judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database must file and serve a copy of that opinion, order, judgment, or other written disposition with the brief or other paper in which it is cited.

I clicked through and filed a comment in favor of the proposed rule, and I urge my regular readers to do the same, by clicking here.

What can I say, rooting around for the magic case is what I like to do.

Chief Judge Wilson upholds Virginia sex offender registry law

In Ballard v. Chief of the FBI, Chief Judge Wilson dismissed a constitutional challenge brought by a pro se inmate to the Virginia statute providing for a registry of sex offenders.

How prompt is prompt

In Parker v. Malone, Chief Judge Wilson of the W.D. Va. held that the defendant had complied with the requirement of "promptly" filing the notice of removal in the state trial court, where the filing in state court was made 22 days after the notice of removal was filed in federal court.

Accused murderer at law school seeks venue change

The Roanoke paper reports here ("Defense seeks venue change in school shooting," 1/29) and the Bristol paper reports here ("Defense attorneys seek to have Odighizuwa's trial moved," 1/29) on efforts by counsel for the accused murderer at the Appalachian School of Law to obtain a change of venue for his criminal trial, away from Buchanan County.

The defendant is African. According to this page of facts from the 2000 census, the population identifying itself as black or African American in Buchanan County was 2.6% of the whole.

The big money Shoney's soup case

Matt at Abstract Appeal has the lowdown on the $407 award in the Shoney's wrongful soup case - including how it is that the plaintiff under Florida law might be required to pay the defendant's attorneys' fees.

Sounds like looting to me

For two years in a row, my sister gave me Atlas Shrugged for Christmas. (Maybe she got a volume discount.)

I can't say that I've become a student of Ayn Rand, but the headline "Free Money" for a post about an Atlas Shrugged essay contest must be some kind of a joke.

Tennesee's illegal ISP tax

Bill Hobbs posts here on how Tennessee is is no hurry to refund taxes on internet service providers collected illegally over the past few years.

The name game

I enjoyed this story, via How Appealing, of how a lawyer named Carter Phillips once addressed Justice Ginsburg as Justice O'Connor, and the next time he appeared before the Court, Justice Ginsburg referred to him as "Mr. Carter."

New Virginia trespass law following Hicks case passes the Senate

Last year, the U.S. Supreme Court sided with the Commonwealth in the Hicks case, where the issue was the constitutional validity of no trespassing rules at a housing development in the City of Richmond. This year, the Senate has passed a new law SB 233 on trespass policies for housing authorities, including a provision for the Attorney General's office to put forth a model policy taking into account constitutional issues. AG Kilgore's press release on the new law is here.

No change in SOL rules for graduation

The Richmond paper reports here that the House Education Committee rejected a proposal for some relief from the rule that high school seniors will not graduate this May without passing the Standards of Learning tests.

Failure to preserve error in objection to testimony of gerontology expert

In Correll v. Com., the Virginia Court of Appeals in an opinion by Judge Humphreys, joined by Judges Felton and Kelsey, concluded among other things that trial counsel had not adequately preserved its objections to the admissibility of a gerontology expert, in a criminal case involving the abuse and neglect of an incapacitated senior citizen.

Interrogation of student by associate principal does not violate Miranda

In J.D. v. Com., the Virginia Court of Appeals in an opinion by Senior Judge Coleman, joined by Judge Frank and Judge McClanahan, found there was no error in the denial of a motion to suppress self-incriminatory statements by a 14 year-old high school student in response to an interrogation by the associate principal on school grounds, in the presence of the school's safety officer and when the student's father, a teacher, was in the same building. The Court held that the principal is not a law enforcement officer and is not required to give his students a Miranda warning.

New W.D. Va. standing order on use of personal information in federal court papers

As we approach the advent of electronic filing of the W.D. Va., I have gotten around to reading the new standing order on the use of personal information in court papers. The standing order deals with the non-disclosure of Social Security numbers, birth dates, financial account numbers, and names of minor children.

We still have no local rules in the W.D. Va. Of how many other districts, I wonder, can that be said? I have a few pending cases outside the W.D. Va., and the local rules in those other districts have always helped me.

Post-judgment reduction in sentence for clarifying amendment to guidelines

In U.S. v. Goines, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judge Wilkinson, with Judge Luttig dissenting, reversed Judge Jones of the W.D. Va. on the issue of whether a criminal defendant was entitled to a reduced sentence based on a "clarifying" amendment to the Sentencing Guidelines.

For the non-practitioner, this opinion was pretty tough sledding.

Fourth circuit affirms exclusion of expert testimony in pesticide case

In Bourne v. E.I. DuPont de Nemours & Co., the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Niemeyer, and Gregory affirmed the summary judgment for the defendant pesticide manufacturer, concluding that there was no error in excluding the testimony of plaintiff's expert on causation, in a case where plaintiffs claimed birth defects resulted from the mother's exposure to a fungicide called Benlate.

Jack Kennedy wild about electronic filing in Virginia circuit courts

In this article ("Wise County court clerk pushing for e-filing of litigation," 1/26/2004) in the Kingsport Times (registration required), the Wise County Circuit Court clerk explains why he is nuts about electronic filing.

The Wise County Circuit Court has this memorable website, including a courtroom webcam. I heard the story that one time a lawyer in Norton, an older fellow but computer-savvy, was sitting in his office and had the courtroom cam turned on his screen while he worked at his desk, then heard the people in the courtroom starting to call out his name, so he ran out the door and drove quickly up to Wise.

More on mountaintop mining

The NY Times has this story which begins: "The Bush administration is moving to revamp a rule protecting streams that Appalachian environmentalists view as their best weapon for fighting the strip-mining technique of mountaintop removal.."

Supreme Court rules in John Lamie attorney's fee case

In Lamie v. U.S. Trustee, the U.S. Supreme Court agreed with the bankruptcy court and district court of W.D. Va. and the Fourth Circuit were correct in ruling against Abingdon attorney John Lamie on an issue regarding fees for counsel representing Chapter 7 debtors. The villain in the case was Congress, which apparently in recodifying the law regarding fees for professional services dropped the ball and left out critical language in the code section at issue, 11 U.S.C. 330(a).

Interesting, there was a concurring opinion by Justice Stevens, joined by Justices Souter and Breyer, which says that the "plain meaning" rule should not be so harshly construed as to preclude reference to the legislative history in such a case.

More on the Giarratano case

Mark Holmberg explains here why there is more to know about the Joe Giarratano case than that some death penalty opponents think he was wrongfully convicted. Holmberg cites, among other things, the fact that Giarratano's own lawyer remains convinced that he is guilty.

Claude Allen renomination as evidence of Bush getting tough on judgeships

This article from National Review Online says that President Bush has gotten tougher but Senator Hatch has gone soft on the fight for the hearts and minds of the federal judiciary - the article notes that while the president defied tradition in nominating Claude Allen, a "Virginian," for a Maryland seat, Senator Hatch has told Democrat senators he will "negotiate" on the Allen nomination.

In an unrelated article, Senator Leahy cited the renomination of Allen together with the recess appointment of Charles Pickering as "disappointing developments" that would make it difficult for Senate judiciary committee members to work together.

Will the SOL bar be lifted?

The Washington Post reports here ("Bill Would Lift SOL Rule for Graduation," 1/25/2004) that the General Assembly will consider a last-ditch pitch on Monday to change the rule that would keep this spring's high school seniors from graduating unless they have passed the Standards of Learning tests.

200 down, 2,400 bills to go in this year's General Assembly session

This article ("Beyond the budget, a full plate," 1/25/2004) from the Richmond paper has the numbers on the workload for legislators in this year's General Assembly session.

Turning up the heat with added perjury charges in Knox, Gilmore, Church cases

In this very interesting article ("Perjury charges common in retrials," 1/25/2004) from the Roanoke Times, the point is made that prosecutors like to add perjury charges to increase the pressure on defendants in cases that must be retried. The W.D. Va. prosecutors have added perjury charges against Dr. Cecil Knox, against fundraiser Richard Burrow, and against an alibi witness in the Gilmore-Church cases.

More on Fourth Circuit and expert witnesses

The always excellent Blog 702 says here that the Fourth Circuit issued an unpublished opinion this week upholding the exclusion of expert testimony about how the defects in a ladder on a yacht caused the plaintiffs injuries.

The case is Higginbotham v. KCS Int'l, Inc., a per curiam opinion for the panel of Chief Judge Wilkins and Judges King and Gregory. The court of appeals that the methodology of plaintiff's expert was too speculative for his opinions to be admissible.

Who says a county board is not sovereign?

In this article about a lawsuit against Chesterfield County, a U.Va. law professor is quoted as saying ""You can sue a board of supervisors. Sometimes, you can even succeed. . . . The point is, the board is not sovereign. The board is a subordinate unit of the government. The commonwealth is sovereign, not the board."

What's that guy talking about? In Virginia, counties as the bedrock political subdivisions of the Commonwealth share fully in the sovereign immunity of the Commonwealth, and unlike the Virginia Tort Claims Act, which allows some claims against the Commonwealth, there are no exceptions to that immunity for counties. The immunity of counties, unlike for cities and towns, is not limited to claims arising out of the governmental activities of the county. The county board in its official capacity is totally immune from state law tort claims. In federal court, counties don't share in the Commonwealth's Eleventh Amendment protection, but that is not exactly the same thing as sovereign immunity, and there are some statutes where Congress has expressly abrogated even the Eleventh Amendment protection of the states. County board members and employees are not necessarily immune as individuals, but neither are employees of the Commonwealth. County board members probably are immune when they act as legislators, including legislation about zoning, in the same way that individual state legislators are immune.

Besides, immunity is not an issue in a suit that is not for money damages, which I don't believe is part of the Chesterfield County suit, which is some kind of zoning matter. When I read something like this in the paper, I wonder what was really said between the reporter and the expert. (Also, I wonder how it is that I get all fired up about questions of sovereign immunity.)

Grayson County murder case without a body

The Roanoke Times reports here ("Lack of boy's body won't stop murder trials," 1/24/2004) on an upcoming murder trial in Grayson County, in a case where the young victim's body was never found.

House of Delegates committee stops two anti-gun bills

In the never-ending fuss over the details of gun control in Virginia, the House Militia, Police and Public Safety Committee derailed two proposals, one dealing with firearms in the possession of persons involved in domestic violence and the other one allowing schools to prohibit guns from school grounds, as reported here ("Delegates committee kills pair of gun bills," 1/24/2004) in the Daily Press.

The article notes that federal law already prohibits persons who have been convicted of domestic violence from possessing firearms.

On the local option issue for schools and hunting rifles, advocates of the law wanted to give school boards the discretion to decide whether hunting weapons should be prohibited on school property.

Virginia delegates want Virginia out from under No Child Left Behind

According to this story ("Va. Seeks To Leave Bush Law Behind," 1/24/2004) in the Washington Post, the Virginia House of Delegates passed by a vote of 98-1 on Friday a resolution calling for the federal government to give Virginia and other like states an exemption from the requirement of the federal No Child Left Behind program.

Republicans finishing work on reform plan for state court judgeships

The Norfolk paper reports here ("State GOP poised with final reform for judiciary," 1/24/2004) that Republicans in the General Assembly are nearing completion of a plan for the evaluation of state court judges - which includes evaluations from jurors and lawyers during a judge's term.

The article describes the current judicial selection process as follows:

"Under the current process, many local judgeship candidates interview with a panel of citizens and lawyers.

They must also seek endorsements from their bar associations and win nominations from their Senate and House representatives.

The Senate and House Courts of Justice committees then interview leading candidates. The committees pick their top choice. Then the Senate and House votes on the judgeships.

During the process, candidates must fill out a questionnaire about their judicial experience, training, education, financial stability and club affiliations. They must also agree to a criminal background check."

Cost of hosting Muhammad trial - $558,701

According to this report ("Virginia Beach tallies cost of sniper trial at $558,701," 1/24/2004) in the Norfolk paper, the cost to the City of Virginia Beach of hosting the trial of convicted murder John Muhammad was $558,701.

I'd say the security costs were the least of it. Someone was telling me the other day that the cost to date for the federal government in lawyer fees and costs just for the defense side in the Gilmore and Church case was much more than $1,000,000, and this is before the next trial begins in February. I wonder what the defense costs will be in the Muhammad and Malvo cases.

Mike Urbanski sworn in as magistrate judge for the W.D. Va.

The Roanoke paper reports here )"Urbanski sworn in as magistrate judge," 1/24/2004) on the swearing-in of Roanoke attorney Michael Urbanski as the new magistrate judge for the U.S. District Court for the Western District of Virginia, filling the vacancy created when former magistrate judge Glen Conrad became a district court judge.

Case study in idiocy

I'm always wondering how to demonstrate the difference between negligence, gross negligence, reckless indifference.

Maybe this case is one example. In Gantt v. Security USA, Inc., the Fourth Circuit reversed the district court's entry of summary judgment on the state law intentional infliction of emotion distress claims. The opinion begins like this:

"Dominique Gantt informed her employer, a private security company, that she had obtained a protective order barring her former boyfriend from any contact with her. But Gantt’s supervisor, apparently believing that the estranged couple "should talk," permitted the boyfriend access to Gantt. The boyfriend then, at gunpoint, kidnaped Gantt from her work place and held her captive for six hours, assaulting and raping her. Gantt brings this action against her employer seeking damages for her resulting severe emotional and mental distress. . . ."

The part that really makes me irate is that the employer was a security company!

Christie selected as new member of SCC

As reported here by the AP, the General Assembly has selected Mark Christie, counsel to the Speaker of the House, as the new member of the Virginia State Corporation Commission. The State Corporation Commission is the public utility commission in Virginia, in addition to responsibilities for the registration of business entities.

School official denied qualified immunity in speech case about race

In Love-Lane v. Martin, a split panel of the Fourth Circuit concluded that a school superintendent was not entitled to qualified immunity on claims that he retaliated against an assistant principal for her speech on a matter of public concern involving racism in the public schools. Judge Michael joined by Judge Gregory wrote the opinion for the majority, and Judge Wilkinson dissented on the qualified immunity issue.

Well, the dissent gets my vote on this one. The dissent makes the point that the effect of the denial of qualified immunity in another race case is to make life too hard for government officials charged with maintaining employee discipline. In Cromer, and now again in Love-Lane, the Court has declared that matters of race are so taboo that no reasonable official would think he could take adverse action against an employee who speaks out on racial matters - without ironclad proof that the speech was not the reason. The result may be that sensible administrators will make their disciplinary decisions regarding such individuals based on the availability of courtroom evidence to prove employee misconduct, rather than their best judgment about what is the right thing to do.

Also, there is a strange reliance in the majority's opinion about the significance of the plaintiff's own characterization of the manner of her speech. I would not have thought from other cases that this kind of self-assessment evidence would be insufficient to create a genuine dispute of material fact. Compare Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 135 (4th Cir. 2002) (evidence that amount[s] to no more than subjective belief[] . . . is insufficient to create a genuine issue of material fact as to any discriminatory conduct); DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (the plaintiff's perception of [her]self . . . is not relevant).

On concealed handguns in the Commonwealth

Rule of Reason has this interesting post on the law of concealed handguns in Virginia, and advocates passage of Senate Bill 579, which criminalizes carrying around a gun while you have a blood alcohol content level of .02 percent or more.

VTLA explains opposition to damages caps in med mal claims in Virginia

The Lynchburg paper reports here ("Medical proposal opposed," 1/22/2004) the opposition of the Virginia Trial Lawyers Association to a legislative proposal from Republican Delegate Steve Newman to limit non-economic damages in medical malpractice cases, to $250,000 - this, I suppose, would be in addition to overall damages limit, which is now capped at $1.8 million, according to the article.

More on Claude Allen nomination

Via How Appealing, the Baltimore Sun has this article ("Bush nominates Allen again for 4th Circuit appeals court," 1/21/2004) and the Richmond Times-Dispatch has this article ("President nominates Allen again," 1/21/2004) on the renomination by President Bush of Claude Allen to sit on the U.S. Court of Appeals for the Fourth Circuit.

Meanwhile, one of the Volokh conspirators has taken up the Claude Allen nomination, and concluded that knowing nothing else, he would be suspicious of a former Jesse Helms aide as a judicial nominee, as shown here.

Still searching for evidence of Joseph Giarratano

According to this report ("Judge isn't sure Giarratano evidence exists," 1/22/2004) in the Richmond paper, a Norfolk judge has ruled in the case of former death-row inmate Joseph Giarratano that he doesn't think that law enforcement officials should be required to conduct any more searches of their files for possible DNA evidence that might help Giarratano prove that he is innocent. Giarratano was on death row until he got a conditional pardon from Governor Wilder.

W.D. Va. U.S. attorneys compound the case against Dr. Knox

This report ("New charges pile up on pain doctor," 1/22/2004) in the Roanoke paper and this report ("Doctor faces new painkiller charges," 1/22/3004)in the Richmond paper describe how the U.S. Attorney's office for the W.D. Va. has added new charges in the latest indictment of Dr. Cecil Knox, the Roanoke doctor who was acquitted on 30-some charges and got a hung jury on the rest at the end of a lengthy trial last year. Dr. Knox is mainly charged with overbilling the government and overprescribing pain medication.

Tort reform before the General Assembly

This Washington Post article ("Va. Bill Aims to Limit Liability Suits," 1/20/2004) describes the proposals introduced in the House of Delegates that would limiting lawsuit against gun manufacturers, tobacco companies, and fast-food restaurants in the Commonwealth.

Virginia judgeship news

The legislature has picked one of its alumni, former Sen. Trumbo, for the vacant judgeship in the 25th Circuit, covering the counties of Botetourt, Craig, Rockbridge, Alleghany, Bath and Highland and the cities of Lexington, Buena Vista and Covington, as reported here in the Roanoke paper ("General Assembly elects Trumbo circuit court judge," 1/21/2004).

In addition, the legislature has voted out an African-American judge in Virginia Beach, as reported here, citing the fact that he was reprimanded by the Virginia Supreme Court, as reported here ("Beach judge removed from his position," 1/21/2004) in the Norfolk paper. This is the second year in a row the Republican-controlled legislature has ousted a sitting African-American judge.

Also, the Northern Virginia legislators will not approve what amounts to an additional year for a Fairfax County general district court judge, one year away from mandatory retirement, as reported here ("Lawmakers Seek to Oust Fairfax Judge," 1/21/2004) in the Washington Post.

Also, President Bush has renominated in the new session of Congress Claude Allen to sit on the U.S. Court of Appeals for the Fourth Circuit, as reported here by the AP.

Ah, the fertile mind of Del. Marshall, on the unborn and gay marriage

According to this report in the Roanoke paper, two of the bright ideas of Delegate Robert Marshall have been rejected this session, one being a ban on executing pregnant woman, and the other a statutory provision for the impeachment of judges who recognize gay marriage, in the manner of the Massachusetts appeals court judges.

Both of these proposes seem pretty far over the top to me, and the latter is probably just plain unconstitutional. Are there no constitutional guarantees of judicial independence in the Virginia Constitution? Maybe not.

Birthday presents

Thanks for these anniversary posts on How Appealing, Freespace, the Curmudgeonly Clerk, Southern Appeal, Indiana Law Blog, Abstract Appeal, and Begging the Question.

Also, congratulations to IsThatLegal, also reaching the age of 1.

P.S. Add to that list for thank yous - this post from Ernie the Attorney.

Should the people vote on taxes?

Tim Sandefur points out here how odd it sounds for Governor Warner's office to say, in effect, that life is too short to put tax increases to a vote by the people.

Virginia verdict sparks debate in medical circles

As described in this post from the LitiGator, a million dollar medical malpractice verdict has sparked some lively debate in the medical world about what is malpractice, particularly as regards the standard of care for diagnostic testing.

Cert granted in Truth in Lending Act case from 4th Circuit

According to this SCOTUSBlog post, the U.S. Supreme Court has granted certiorari in the case of Koons Ford v. Nigh, involving claims under the Truth in Lending Act.

More on party caucuses and FOIA

In this editorial, the Virginian-Pilot says that AG Jerry Kilgore's opinion that the open meeting requirements of the Freedom of Information Act apply to some party caucuses of members of the General Assembly is a good thing.

General Assembly starts session by nixing live TV in the House

According to this Washington Times article, the General Assembly session got started with a decision to not allow televised floor debates in the House. Delegate Robert Marshall probably convinced everyone on this point, when he asked, "Do you really want someone like me to get even more exposure?" (Delegate Marshall has a lot to say.)

Judge Wilkinson gets Jefferson Medal

The Cavalier Daily reports here that among this year's recipients of the Jefferson Medal is Fourth Circuit Judge and former U.Va. professor J. Harvie Wilkinson, III.

On the late Judge Roberson

The Coalfield Progress has this article on former Wise County Circuit Court Judge James Roberson, who died a few days ago.

More on the Fredericksburg FOIA case

SW Virginia law blog reader Becky Dale offers her opinion here in the Richmond paper regarding the case argued last week before the Virginia Supreme Court whether city councilmen can swap e-mails without having a meeting.

I suppose that even if e-mails are out, IMs among the members of the board of a public body would be bad, because that would be more like a meeting via telecommunications, but then how many supervisors and councilmen sit around playing with IMs?

First anniversary of Southwest Virginia law blog

Incredibly, I started blogging a year ago today.

Belated thanks to those who have helped make SW Virginia law blog a fun thing for me to do, by noting my blog or adding me to their lists or citing my posts or responding to my e-mails: Howard Bashman, Denise Howell, Ernie Svenson, Tom Mighell, Jerry Lawson, David Giacalone, Ken Lammers, Tim Sandefur, Ben Domenech keeping watch on Virginia politics, Bill Hobbs (likewise in Tennessee), members of the vast conspiracy of federal law clerks - "Feddie" (no longer anonymous) and the Curmudgeonly Clerk, Brian Peterson in West Virginia, Marcia Oddi in Indiana, Matt Conigliaro in Florida, and municipal telecom guru Al Bonnyman, among others. The best part of blogging is stealing from their minds.

Many of these are the usual suspects, the same people to whom everyone else says thanks, which means only that their good deeds and examples deserve more credit, and not that I am any less grateful to be among the beneficiaries.

On Friday's death penalty rulings

The Richmond paper has this article ("Va. high court affirms death penalties," 1/17/2004) and the AP has this article on the rulings by the Virginia Supreme Court in the four death penalty cases decided on Friday.

Delegate Kilgore's apple butter bill

This AP article made the local paper this morning, regarding Delegate Kilgore's proposal to legalize the use of copper kettle to make apple butter in Virginia.

Kaine says no on death penalty in Virginia

According to this article ("Death penalty divides Kaine, Kilgore," 1/18/2004) in the Richmond paper, Lt. Governor Kaine opposes the death penalty, citing his religious beliefs.

Methadone clinic advocates claim proposed new Virginia laws may violate ADA

The Roanoke paper has this report ("Legislation would all but bar drug clinics," 1/18/2004) in which some lawyers claim that the proposed new Virginia laws restricting the location of methadone clinics may violate the Americans with Disabilities Act.

Oral argument before Va. Supreme Court in Fredericksburg FOIA case

This article ("Va. high court reviews council's e-mail use," 1/15/2004) in the Richmond paper makes it look like the Virginia Supreme Court has some doubts about whether public officials can violate FOIA by exchanging e-mails.