On buying local stuff

A new one on me is this site, where you find things to buy that were "Grown, Crafted and Manufactured in Northeast Tennessee & Southwest Virginia."

The Virginia State Board of Election's standards for recounts of Virginia elections

Revised as of November 28, 2005, the State Board of Elections has promulgated these standards for the conduct of election recounts in Virginia, with these ballot examples for manual recounting.

On hourly rates

On law.com, they are reporting that Hourly Billing Rates Continue to Rise, including discussion of one partner at the Venable firm who charges $1,000 per hour for some matters.

I don't know anything about Mr. Civiletti, but the several lawyers I've met from Venable earn their money; they're as stout a bunch as any I've come across.

RLUIPA show and tell

This cross beside the interstate must be 30 feet high. 

I always wonder when I drive past it whether they had to apply for some kind of permit under the zoning ordinance, and if it had been denied, whether they would have had a claim under the Religious Land Use and Institutionalized Persons Act.

Watch what you ask for

Here are the press reports on the first big ruling in the Attorney General recount:

The AP - Court rejects Democrat's argument in contested AG's race
The Free Lance-Star - Ballots will not be rescanned
Richmond Times-Dispatch - McDonnell gets preliminary court victory
Roanoke Times - McDonnell wins panel decision on recount
Virginian Pilot - Panel's recount ruling goes McDonnell's way
Washington Post - Judges Exclude 26% of Ballots in Va. Recount

The issue was whether all of the "optical scan ballots" in the state would be rescanned. The panel ruled that only where the computer tapes were illegible or contested would the Court consider recounting of individual ballots in those jurisdictions. Optical scan ballots are but one of the several methods of balloting used in the Commonwealth.

The Court's ruling will have the effect of reducing the number of ballots that will be recounted by hand. The secretary of the State Board of Elections indicated that if the 500,000+ optical scan ballots were to be individually recounted, more than 130,000 of those would have to be recounted by hand, because "machines used in nine jurisdictions -- including Martinsville -- could not be reprogrammed to count only the votes in the attorney general's election." The Roanoke article explained: "If they could be reprogrammed, the machines could set aside for inspection any ballots in which there were write-in votes, no votes or more than one vote in the attorney general's race. Without reprogramming, recount officials would have to count each ballot by hand."

The Deeds campaign cited the undervote in Chesterfield County and Virginia Beach. I would not have thought that new votes found in Chesterfield or the Beach would be likely to decrease the margin favoring McDonnell.

The Deeds campaign based its arguments on the magnitude of the undervote. As described here, there are always fewer votes case for Attorney General than for Governor, and a spread of 5 points between the percentage of ballots recording a vote for governor and the percentage of ballots recording a vote for Attorney General is not uncommon, in the figures shown in Larry Sabato's Virginia Votes 2001, available for download here from the Center for Politics website. In other words, the existence of a 40,000 vote undervote is not surprising - the lack of such an undervote would be more surprising, if not unbelievable.

Also, I can't get out of my mind the conclusions from one commenter to this post on Rick Sincere's blog, where he concludes:

"If you examine the undervote rate -- that is, the number of people who went to the polls but didn't vote in a given race -- for the Lieutenant Governor and Attorney General you see that the average rate for optical scan systems was 2.8% for each race. The undervote rate using DRE machines, though, was 50% higher in each case: around 4.0 - 4.2%. A statistical analysis of varaince [sic] shows that the only significant factor to explain this increase in voter apathy is the technology used, NOT 'voter satisfaction' or even locality size."

The comment links to this site, with analysis of the Virginia vote, which suggests that that 99% of the voters who turned out cast a vote in the Governor's race, 97.16 % cast a vote in the AG's race, 97.01 cast a vote in the LG's race. The site has this summary of the undervote for AG, broken down by type of voting machine.

Rule 11 sanction for filing meritless recusal motions

In Givens v. O'Quinn, Chief Judge Jones imposed a sanction of $250 and a reprimand against a local lawyer for filing what he determined were meritless recusal motions.

In the opinion, the Court observes, with a degree of understatement, that "it is hard to imagine that any other attorney practicing before this court would believe it appropriate to file the present motions."

Living the dream in Abingdon

The Bristol paper reported today that the Town of Abingdon has won the 2006 American Dream Town Award.

Judge Kirksey from Bristol is on the McConnell-Deeds recount panel

From this Commonwealth Conservative post, I see this Washington Post article, which says among other things that the Virginia Supreme Court has appointed Judges Wilford Taylor Jr., of Hampton and Larry B. Kirksey of Bristol to join Judge Markow of Richmond on the panel that will decide the recount in the Attorney General's race.

Judge Kirksey's background is discussed here.

On more money for representing the poor in criminal cases

This free article from Virginia Lawyers Weekly says: "Statewide bar groups and Chief Justice Leroy Rountree Hassell Sr. are expected to lobby vigorously for more money for the representation of criminal defendants, and commission members see the session as a crucial one to make the system credible. Virginia court-appointed attorneys fees are the lowest in the country, and studies have shown that public defenders are underpaid and overworked as well."

I also read in VLW of 11/21/05 that Chief Justice Hassell will not be acting on the proposed family court system this year. That article noted that "Hassell had said initially that he hoped to have the General Assembly approve the concept of a family court in 2006, with funding and operation to begin in July 2007."

New standing order for assignment of cases in the W.D. Va.

I just noticed this new standing order, dealing with the assignment of cases in the W.D. Va., entered on November 28, 2005.

I think it leaves the mix in Abingdon and Big Stone Gap unchanged.

Another odd engineer from Virginia Tech

The Roanoke paper reports here that Henry Morris, who was on the engineering faculty at Virginia Tech from 1957 to 1970, published in 1961 a book about creationism that is still influential today.

Mr. Morris told the paper that he enjoyed his time at Tech. The reason why the professors from other departments did not give him much grief was explained this way: "Faculty in biology regarded Morris and his anti-evolutionist views as almost comical, dismissing him as another odd engineer."

A murder mystery featuring gun rights?

This account describes the efforts of a long-time Culpeper lawyer to write a novel, on themes including the Second Amendment.

Virginia Business Magazine - Legal Elite 2005

The December 2005 issue of Virginia Business has this year's listings of the Legal Elite, and it includes this profile of John H. OBrion Jr., regarding his mediation practice. A while back, I did a little research project, contacting a bunch of people I know and even a few who didn't know me, to get a mediator in Richmond, and OBrion was the consensus choice. We went with him, and he was great.

On the decline of peremptory challenges

Marcia Oddi links here to this AP story which begins: "Judges in Michigan cannot use a person's race, sex, religion or nationality to select jurors under a new rule approved by the Michigan Supreme Court."

On the timeliness of a federal employment discrimination case

In cases under the federal employment discrimination statutes that require filing with the EEOC (Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act), the claimant will eventually receive from the EEOC a right-to-sue letter, and then the claimant has ninety days after receipt of the right-to-sue letter to file in court. See 29 U.S.C. § 626(e), 42 U.S.C. § 2000e-5(f).

In Miller v. Bristol Compressors, Chief Judge Jones of the W.D. Va. found that the plaintiff filed sued on the 91st day, and granted the defendant's motion to dismiss.

The facts were these: (1) the EEOC mailed the right-to-sue on May 31, (2) the complaint alleged on its face that the right-to-sue was received "on or about June 3," (3) in a late-filed affidavit, the plaintiff said that he was on vacation when the letter arrived in his mailbox and first saw it on June 5 (a Sunday), (4) suit was filed electronically on September 2 and the filing fee was paid on September 6.

Chief Judge Jones ruled as follows: (1) a motion to dismiss may be the proper means of asserting the statute of limitations, where the untimeliness is shown on the face of the complaint (2) in applying the 90-day limitations period, the Fourth Circuit does not follow an "actual receipt" rule, because of the potential for abuse, (3) in determining the date of receipt, the Court can apply the presumption underlying Rule 6(e), that the time from mailing to receipt is three days, (4) the Court did not need to decide whether the filing date was September 6 (the Tuesday after Labor Day, when the filing fee was paid) as opposed to September 2 (the Friday before Labor Day, when the complaint was e-filed), (5) plaintiff's motion for extra time to file his response was denied, because no excusible neglect or no particular reason at all was shown; (6) even with the affidavit, the Court would find that the date of receipt was June 3 and not June 5, applying the three-day rule, and not the date when the plaintiff got back from vacation, (7) September 2, when suit was e-filed, was the 91st day after June 3.

On the application of the three-day presumption, there is some diversity of opinion among the other circuits. See Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) ("When the date on which a right-to-sue letter was actually received is either unknown or disputed, courts have presumed various receipt dates ranging from three to seven days after the letter was mailed."); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir. 1986) (deciding on five days, citing 20 CFR § 422.210(c), the five-day presumption for receipt of right-to-sue notices in Social Security cases). See also Rao v. Baker, 898 F.2d 191, 195-96 (D.C. Cir. 1990) (explaining EEOC interprets "receipt ... of final decision" to include "a rebuttable presumption that in all cases in which evidence of the actual date of receipt is lacking, the final agency decision will be deemed to have been received [five] days following the date of decision") (citing 44 Fed. Reg. 34,494 (1979)).

The Fourth Circuit, in unpublished opinions, has recognized the three day presumption. See Nguyen v. Inova Alexandria Hosp., 1999 WL 556446, *3 (4th Cir.) ("If the date is unknown, however, it is presumed that service by regular mail is received within three days pursuant to Rule 6(e) of the Federal Rules."); Dixon v. Digital Equipment Corp., 1992 WL 245867, *1(4th Cir.) ("Rule 6(e) only provides a presumption regarding when notice was received. . . . Title VII claimants may only claim this presumption if the date of receipt of the right to sue letter is disputed."); Ish v. Arlington County, 1990 WL 180127, *1 (4th Cir.) ("We adopt the reconciliation of these positions suggested in Griffin v. Prince William Hosp. Corp., 716 F. Supp. 919, 921 n.7 (E.D. Va. 1989), which held that although Rule 6(e) does not automatically provide a three-day extension to § 2000e-5(f)(1), it does provide a presumption of receipt three days after mailing if the parties dispute the date of receipt.").

Next time, call Domino's

In Coffee v. Morris, the facts were these: the plaintiff mom was riding as passenger, her son was driving, she had two pizzas in her lap, the car gets pulled over for speeding as they were almost home, the son stops in front of their house, the officer tells Mom to stay in the car, Mom gets out, the officer grabs her, Mom sues claiming that her constitutional rights were violated.

On summary judgment, Judge Conrad found that the rights of the passenger were not clearly established, and granted the motion for the defendant based on qualified immunity.

On getting your case transferred from Roanoke to Big Stone Gap

In Simmons v. Johnson, Judge Conrad explained why a claim related to an incident at the Wallens Ridge facility in Wise County should be heard in the Big Stone Gap division rather than the Roanoke division in which it was filed.

West Virginia Supreme Court upholds constitutionality of coal severance tax

In U.S. Steel Mining Company, LLC v. Helton, the West Virginia Supreme Court in a split decision affirmed the constitutionality of West Virginia's coal severance tax. The AP has this article and the Charleston Gazette has this article about the decision.

Here and here are earlier posts on this topic.

Another Virginia bigamy case

The Harrisonburg paper has this report on a bigamy prosecution.

The article quotes the Commonwealth's Attorney:

"It’s a big deal when you get married," Mitchell said. "You can’t arbitrarily end that marriage by getting married to someone else."

The article did not say whether the defendant would claim that the bigamy statute was unconstitutional, on the theory that Lawrence v. Texas has declared all laws about sexual morality to be irrational and therefore invalid. I'm sure that every one of the judges up there would be delighted to entertain the issue.

Local attorney arrested on allegations that he e-mailed his client with instructions to lie in court

Someone sent me this link, which says in part:

"The Tennessee Bureau of Investigation is now investigating a Tri-Cities attorney for perjury, after he is accused of advising one of his clients to lie under oath. . . .

The arrest came after his client, a defendant in a DUI case, provided the judge with two emails from Pratt before her trial started today."