Bashman on stealth judging in state appeals court

Howard Bashman comments here that it's time to abolish invisible rulings by state appellate courts, and he's right.

The Virginia Supreme Court is, to my knowledge, one of the very worst offenders on this point - it is impossible to find on Westlaw or online an unpublished decision, even though the lawyers in the case get them from the clerk (and the Richmond law firms get them the same way).

One of the cases I argued before the Virginia Supreme Court is unpublished, might as well have never been decided. And, it was an interesting case, even though my side lost.

By contrast, the unpublished opinions of the Virginia Court of Appeals are in a sense published on the website and on Westlaw - even if they cannot be cited as precedent, everyone can read them. Access to unpublished opinions is an open government issue.

Fourth Circuit nominees Haynes and Boyle to be withdrawn from consideration

Via ACSBlog, the AP is reporting that Fourth Circuit nominees William J. Haynes and Judge Terrence Boyle of North Carolina have notified President Bush that their names be withdrawn from consideration, or in any event the White House is not going forward with their nominations. Judge Boyle, according to the Raleigh paper, did not "throw in the towel" himself.

The Washington Post has this editorial, applauding the withdrawal of these names. It says in part: "Mr. Bush's move was a wise acknowledgment of political reality, but it was also right on the merits. Democrats had valid objections to the nominations of William J. Haynes II, William G. Myers III, Terrence W. Boyle Jr. and Michael B. Wallace. Mr. Haynes, the Pentagon's general counsel, has been a key player in the military's policies on detentions and interrogations in the war on terrorism. . . . Judge Boyle, who serves on the U.S. District Court in North Carolina, has a troubling history in civil rights cases."

Perhaps this development increases the likelihood that the White House will actually nominate one or more of the several qualified Virginia judges for vacant positions on the Fourth Circuit, including Judge Widener's seat and Judge Luttig's seat. Back in June, Virginia Lawyers Weekly listed Virginia lawyers approved by the various bar associations, including among others, Supreme Court of Virginia Justices G. Steven Agee and Donald W. Lemons, Virginia Court of Appeals Judge D. Arthur Kelsey, and U.S. District Judges Glen E. Conrad of Roanoke, James R. Spencer of Richmond, and Rebecca Beach Smith of Norfolk.

The Richmond paper's article reports that new Senator Webb expects to play an active role in the selection of nominees from Virginia. Senator Webb's list of candidates might vary a good bit from those former Senator Allen would have preferred.

Drug guy's phone call to undercover officer not testimonial hearsay

In U.S. v. Ayala, Chief Judge Jones of the W.D. Va. held that the Confrontation Clause as construed by the Supreme Court in the Crawford case does not apply to bar the admissibility of the out-of-court statement about the defendant made by some drug guy on the cell phone who thought he was talking to another guy wanting to buy drugs who was actually an undercover police officer.

It does seem that a statement of this kind is not too much like testimony in court, or so one would hope.

Good story on retiring SC appellate judge

In South Carolina, the State has this delightful profile of a retiring appellate court judge, which begins with this story:

"In the early 1960s, when Travis Medlock and Bert Goolsby were young lawyers in the S.C. Attorney General’s Office, the two were assigned to try a major stock fraud case.

As Medlock tells the story, the lead prosecutor suddenly pulled out in the middle of the Greenwood trial. That left the two young prosecutors in charge.

Goolsby looked toward the area where the state’s witnesses were sitting and called a man to the stand. To Goolsby’s surprise, the witness said he knew nothing about the case.

He was the court bailiff.

Goolsby, now 71 years old and a judge on the S.C. Court of Appeals, will retire June 30. He is the last of the court’s original six members."

New tactic considered in sludge fight

The Lynchburg paper reports here that some lawyers are promoting a new draft ordinance that they believe would empower Campbell County and others to ban the use of biosolids as fertilizer. The Campbell County group has a website, with link to something called the Community Environmental Legal Defense Fund, which has on its website some draft ordinances, including this one which sounds like what is being proposed for Campbell County. The draft ordinances were written for Pennsylvania, where presumably the Dillon's Rule presumption is not quite so strong as in Virginia.

As noted in this post from 2004, Appomattox County wound paying $225,000 in attorney's fees when it lost the court challenge to its biosolid ordinance.

The Virginia Supreme Court rejected Amelia County biosolid ordinance in 2001.

NC's oldest law firm to merge with Williams Mullen

Triangle Business Journal reports here that Maupin Taylor is merging with Williams Mullen.

Southwest Virginia's latest international celebrity

As reported here, the two-faced calf from Rural Retreat has made news around the globe.

It even got a BoingBoing post.

Will bar endorsements make a difference in selection of Albemarle County judge?

cvillenews.com notes here that the local bar endorsed two for the Albemarle circuit court, but a third candidate is still in the running.

What would happen if someone like Waldo was on the case of every judicial vacancy in the Commonwealth?

Split decision in Title VII case

In Luh v. J.M. Huber Corp., the Fourth Circuit in an unpublished opinion by Judge Widener, joined by Judge Niemeyer, affirmed summary judgment on the plaintiff's employment discrimination claims. Judge Gregory wrote a 20-page dissent, concluding that there was a question of fact as to pretext. Loblaw made this one of his Decisions of the Day.

Can Williamsburg find a place to house enough foreign workers for the Jamestown 2007 celebration?

In some kind of triple-reverse irony, the Daily Press reports here that the hotels in Williamsburg have asked for permission to house foreign college students they need to work the hotels, particularly in light of the upcoming Jamestown 400th anniversary, which is expected or hoped to be a boon to Colonial Williamsburg (which has been otherwise somewhat on the wane).

It seems like not to long ago we went to the Outer Banks and everyone working there who was not white Southerner was white Russian - Russian college girls working the cash registers, serving the drinks, taking delivery of our rented linen at the end of the week.

The upcoming meeting of The Virginia Bar Association later this month in Williamsburg includes a focus on immigration issues, including a session titled: "From Jamestown to Washington, D.C. — The Challenge of Immigration: What if the Native Americans Had Built a Wall?"

Some of the Virginia political bloggers have been taking sides on the proposal by some Virginia legislators that the General Assembly should in the upcoming session apologize for slavery. The timing of this proposal is said to be linked to the Jamestown anniversary, as the first colonial slaves were imported to Jamestown (albeit in 1619, not 1607). The history of those "20 and odd" persons of color continues to evolve.

When is employer liable for subordinate's bad motive

SCOTUSBlog reports here that the Supreme Court has granted this cert petition, presenting this interesting question:

Under what circumstances is an employer liable under federal anti-discrimination laws based on a subordinate's discriminatory animus, where the person(s) who actually made the adverse employment decision admittedly harbored no discriminatory motive toward the impacted employee.

I have written a little bit about this in the past; it is a particularly lively issue in government cases, where the decision-maker is a group of people.

SCOTUSBlog also reports that the Supreme Court has agreed to hear another appeal related to the long-running litigation between athletic powerhouse Brentwood Academy and the Tennessee Secondary School Athletic Association.

When thinking like a lawyer is not enough

A report described here in Inside Higher Ed says that legal education goes only have way at best - students learn issue spotting but not how to translate the theory into practice.

Really interesting stuff being argued next week in Virginia Supreme Court

Among the highlights:

some kind of rehearing in Taboada v. Daly Seven, Inc., which is the same case in which the Court in a subsequent opinion called out the losing lawyer for bad stuff he said about them in his petition for rehearing

the appeal from the denial of post-conviction relief in the Aleck Carpitcher case, the famous and troubling case from Roanoke in which the child victim has recanted the trial testimony that led to the conviction

the defendant's appeal in Raytheon Technical Services Company, et al. v. Hyland, involving defamatory performance evaluations

a dispute between LLC members in Roden v. Lerner, where the delightfully-phrased issues are these: "1. The trial court erred in concluding that Lerner had attached a “reasonable” condition to her “push,” when Section 12(A) of Rodler’s Operating Agreement barred her from using Section 11 to obtain payments allegedly owed to Lerner, and LLCs owned or controlled by Lerner, making that condition defective, unreasonable, and unenforceable as a matter of law; 2. The trial court erred in striking down Roden’s “shove” as invalid when his “shove” complied with the requirements in Section 11 of Rodler’s Operating Agreement, and matched Lerner’s “push,” obligating Lerner to sell Roden her ownership interest in Rodler’s LLC, as Section 11 mandates."

perhaps a new twist on an old issue in W.R. Hall, Inc. v. Hampton Roads Sanitation District and Estes Express Lines, Inc., et al. v. Chopper Express, Inc., where both cases involve the issue of the validity under the public policy of the Commonwealth of contractual indemnification as applied to one party's future acts of negligence that result in bodily injury." There was an opinion from Judge Williams of the W.D. Va. on this issue when I was a law clerk in 1989-1990, and he concluded the contract was not against Virginia's public policy. That case involved a tenant who filed suit claiming the landlord's building had made her sick only to find out she had agreed in the lease to indemnify the landlord for personal injury resulting from the landlord's negligence, including her own injury.

Parikh v. Family Care Center, Inc., a non-compete case

Lambert, etc. v. Javed, et al., a Bill Eskridge case that sounds like a Bill Eskridge case, where it appears that the plaintiff filed Suit No. 1 which was timely, then filed Suit No. 2 which was untimely, and then after dismissal of Suit No. 2 based on statute of limitations had Suit No. 1 dismissed based on res judicata. I think the Fourth Circuit almost got to the question of the res judicata effect of a statute of limitations dismissal in Q Intern. Courier Inc. v. Smoak, 441 F.3d 214 (4th Cir. 2006), but instead passed the buck back to the E.D. Va. Anyhow, from Smoak, and Semtek Int'l Inc. v. Lockheed Martin Corp., 531 U.S. 497 (2001), I'm thinking there is more to this issue than I would have guessed, the answer is not the same in every state.

the Nusbaum cases, where one of the issues is whether the trial court "abused his discretion by determining that Mr. Nusbaum deliberately physically attacked defense counsel because the evidence was insufficient to support that finding."

History of Legal Aid in Virginia

Worth reading are the articles by John Levy, Larry Harley, John Jeffries, Jack Harris, and others about the history of Legal Aid in Virginia, from the December 2006 magazine of the Virginia State Bar.

Professor Levy recounts how, among other things, going into Roanoke federal court with a woman co-counsel around 1970 and the judge and opposing counsel could not decide when to sit and when to stand, and also that a circuit court judge in Botetourt County once ruled that Legal Aid lawyers would not be allowed to practice there, and so the lawyers had to file suit in federal court to get this extraordinary prohibition overturned.

Professor Jeffries, who wrote the biography of Justice Lewis Powell, describes how Powell as president of the American Bar Association in 1964 acted boldly in support of what became the Legal Services Corporation, an effort which his supporters cited a few years later when he was nominated to the Supreme Court.

What they said

Permit me to associate myself with the remarks of others (here and here and here, among other places) saying goodbye to the blogs of Norm Leahy and Conaway Haskins, two of the best.

As for me, I'm with Milbarge, who wrote I Survived the '06 Blogger Massacre.

What happens with local Republican legislators cannot agree on judgeship

Here it is reported that the juvenile court seat on the Eastern Shore is vacant and likely to remain so while the legislators fail to get it together:

ACCOMAC -- The Eastern Shore's Juvenile and Domestic Relations District Court judge's position, which has been open since last year, likely will go unfilled again this year because of a stalemate, some predict.

The General Assembly, which appoints judges, will convene Jan. 10.

The process could go as it did last year, with the General Assembly unable to decide whether Accomac attorney Thomas B. Dix Jr. or Eastville attorney Croxton Gordon should be appointed.

Last year, Dix was nominated by the House and Gordon by the Senate. Nothing can be decided until both houses agree.

Del. Lynwood Lewis said he suspects the House and Senate will maintain their positions during this year's session.

"I've been in politics long enough to know nothing is surprising," he said. "It's unfortunate, but it's how the process works."

Sen. Nick Rerras said he again will nominate Gordon. Del. Leo Wardrup, Republican of Hampton Roads, last year nominated Dix.

Wardrup was out of town for the holidays and could not be contacted, a legislative aide said last week. Dix said last week that he expected to again be nominated.

Customarily, the candidate endorsed by the local delegation -- Rerras and Lewis -- is the one approved.

"We are going to start fresh again," Rerras said, "and I plan on resubmitting Croxton Gordon."

On Charles King

The Roanoke paper has this article on the retirement of the long-time leader of Southwest Virginia Community College, near the border between Russell and Tazewell counties.

Should big-time women's college basketball teams continue to practice against males?

This Inside Higher Ed article says that some rogue outfit in the NCAA is proposing to ban the practice of women's basketball teams using groups of male players for practice.

This is another one of those articles that confirms the stereotype of the brainless forces of political correctness run amok.

Next, they'll rule the players on the women's teams cannot be allowed to play all-male video games, as a form of virtual practice, but instead must replace their NBA, Madden, and Tiger Woods games with some kind of female alternatives.

The year in review

The W.D. Va. website links to what seems to me like an unusually high number of opinions for my cases in 2006, and looking over what they say, they mostly all show an unusually high level of impatience on my part with getting the other side thrown out of court. Sometimes the Court's ruling was, "Wait."

PENN VIRGINIA OPERATING COMPANY V. EQUITABLE PRODUCTION COMPANY
Case Number: 2:06CV00062 Issued: 12/22/2006 PUBLISHED

CHADWELL V. LEE COUNTY SCHOOL BOARD
Case Number: 2:06CV00011 Issued: 11/20/2006 UNPUBLISHED

HICKMAN V LABORATORY CORPORATION
Case Number: 1:05CV49 Issued: 11/9/2006 PUBLISHED

CHADWELL V. LEE COUNTY SCHOOL BOARD
Case Number: 2:06CV00011 Issued: 10/19/2006 PUBLISHED

HICKMAN V. LABORATORY CORPORATION OF AMERICA HOLDINGS, INC.
Case Number: 1:05CV00049 Issued: 10/6/2006 UNPUBLISHED

BUCHANAN COUNTY, VIRGINIA V. BLANKENSHIP
Case Number: 1:05CV00066 Issued: 9/12/2006 UNPUBLISHED

LOONEY V. ITALIAN VILLAGE
Case Number: 1:05CV00053 Issued: 9/3/2006 UNPUBLISHED

LOONEY V. ITALIAN VILLAGE
Case Number: 1:05CV00053 Issued: 7/20/2006 UNPUBLISHED

BCBE PROPERTIES, LLC V. LAND-O-SUN DAIRIES, LLC
Case Number: 2:06CV00016 Issued: 5/22/2006 PUBLISHED

Not sure what the judge had in mind on this one

In Yates v. UMWA 1974 Pension Plan, the Fourth Circuit in a published opinion by Judge Michael reversed Judge William's decision that the plaintiff was entitled to a service pension from the UMWA 1974 Pension fund.

Eligibility for service pensions is determined by years of classified work with employers who were signatory to collective bargaining agreements with the UMWA. Yates was a truck driver in the mines for over 40 years, and 12 of those years were for a non-signatory subsidiary of Pittston, called Erwin Supply, which had its own union contract and did not participate in the pension fund.

In this pension case, Judge Williams applied liability principles from the Coal Act, which deals with health insurance. The Coal Act was born of the perceived funding crisis for the funds that pay the health insurance claims of the "orphan" pensioners, disabled retirees, and dependents, whose companies were no longer in business. The Act incorporates a variety of creative mechanisms to find companies to pay the health care costs of the beneficiaries, including the retroactive reach back provisions that the Supreme Court held were unconstitutional as applied in Eastern Enterprises v. Apfel. Judge Williams reasoned in his opinion that "[i]f signatory status can be imputed for liability under the Coal Act, then signatory status can be imputed for benefits under the Coal Act."

On appeal, the appeals court reversed, because the plaintiff was not making a claim for benefits under the Coal Act. Unlike the Benefit Funds, the Pension funds required no federal bail-out - the pay-outs from the pension fund are a matter of actuarial calculation, unlike the ever-escalating costs of health insurance. Consequently, the Coal Act was passed solely with respect to health insurance, and its liberal liability provisions have no application to the determination of service with a non-signatory employer can be considered signatory service for purposes of pension benefits.

Evidently, somebody at the Funds thought Yates was entitled to credit for these years of service, as the plaintiff's brief notes that a hearing officer gave Yates full credit and the Funds paid his pension on that basis for some time. Maybe the judge was looking for some kind of application of the W.D. Va.'s own version of the Goose and Gander rule. The problem is that the Funds in this instance are not one monolithic whole.

Those W.D. Va. judges

The federal offices were closed today, but an agreed order that was e-mailed to the Court last night was entered before 9:30 AM.

No matter how oppressed they may be by their low salaries, those W.D. Va. judges churn out the work.

On the retirement of assistant U.S. attorney in Northeast Tennessee

The Knoxville paper has this delightful story on the career of retiring AUSA Guy Blackwell, who is retiring.

Among the highlights:

Blackwell was the lawyer who would have tried the Butcher bank fraud cases - "When we showed (Butcher and his lawyers) the exhibit list, that's when they started talking about a plea agreement."

He prosecuted a case involving an Indian burial site in the national forest, and afterward, "out of respect for Native American burial customs and beliefs, Blackwell went to Cherokee, N.C., and took part in a Cherokee purification ceremony because it had been necessary for him to handle the remains and artifacts as exhibits in the trial."

The article also says, somewhat inscrutably, "One of his first cases in Greeneville was the very last moonshine case ever brought in a federal court." That statement is almost surely in error, the last moonshine case has not yet been brought, has it?

The only good thing about having a bad cold

I just called in sick and at the office they didn't recognize my voice on the phone.

The only good thing about having a bad cold is that you can imagine you sound maybe just a little bit like Barry White.

See it now, in Michigan

In Michigan, they had some kind of referendum against affirmative action, which is making the higher ed people crazy because their side lost, so they filed suit in federal court to overturn the state law referendum, and got "the other side" (presumably, the same side, as the case was in effect part of state government suing the state government) to stipulate to the issuance of a preliminary injunction by the District Court against the implementation of the new law. A real person intervened, and on his appeal, the Sixth Circuit reversed the issuance of the preliminary injunction.

The opinion says the preliminary injunction was improper because the University had no chance of winning on the merits.

In one memorable phrase, the Court says: "One does not generally think of the First Amendment as protecting the State from the people but the other way around—of the Amendment protecting individuals from the State." Regarding the Supreme Court's recent rulings on affirmative action, the Court says: "Grutter never said, or even hinted, that state universities must do what they barely may do."

Finally, the Court observes: "this is an unusual way to use the federal courts. Ordinarily, one might wonder why a court would hesitate to delay the implementation of a state law for six months when the State's Governor, the State's Attorney General and its Universities stand together in urging its suspension. That is particularly so when they offer reasonable administrative grounds for the delay—uncertainty about how the law will be interpreted and uncertainty about applying it during this year's enrollment cycle. Yet none of those administrative grounds explains why the federal courts should delay the law's implementation on federal grounds."

Perhaps the reason why the University chose not to file in state court is because the lawyers suspected that they would lose on appeal before the Republican-majority Michigan Supreme Court - unless some party opposite associates Jeffrey Fieger into the case.

Three blogs gone by

Three of my favorites who've packed it in or moved on - CrimLaw, Southern Appeal, Stay of Execution. Thanks, Ken Lammers, Steve Dillard (and gang), Sherry Fowler, and well done.

UPDATE - Q&O lives on but Jon Henke has joined up with the Nationals in Washington, and not the baseball team neither. Well done, Jon.

CNET reports on the recommendations of AG McDonnell's Internet task force

CNET's Anne Broache reports here on recommendations from the report of the task force assembled by Virginia Attorney General Robert McDonnell on online safety for kids. Included is discussion of the recommendations that ISPs keep records longer so that law enforcement can catch online criminals, and the registration of online handles for sex offenders who use the internet.

The full report of the task force is here.

The task force members, by the way, included the following:

Honorable Eileen M. Addison, Comm. Attorney York County and City of Poquoson
Elizabeth Banker, Associate General Counsel, Yahoo!
Dr. Sally K. Boese, Virginia Association of Independent Schools
Kenneth and Mary Alice Booth, Concerned Parents
Elisabeth A. Bresee, Vice President, Capital One
Honorable Mike Brown, Sheriff, Bedford County Sheriff’s Office
John L. Brownlee, United States Attorney, Western District of Virginia
Dr. Billy Cannaday, Jr., Superintendent of Public Instruction, Virginia Department of Education
Michelle Collins, National Center for Missing and Exploited Children
Charles D. Curran, Chief Counsel, Policy & Regulatory, American Online
Liz Eraker, Policy Analyst, Google, Inc.
Colonel W. Steve Flaherty, Superintendent, Department of State Police
Dianne Florence, President, Virginia PTA
David Foster, Arlington School Board
Anne Gavin, State Government Affairs Regional Manager, Microsoft Corporation
Robert E. Gwaltney, Assistant Special Agent in Charge, FBI Richmond
Honorable Michael N. Herring, Commonwealth’s Attorney City of Richmond
James L. Hilton, Chief Information Officer, University of Virginia
Honorable Janet D. Howell, Senate of Virginia
Honorable Robert Hurt, House of Delegates of Virginia
Virginia James, Cox High School
Bobbie Kilberg, President & CEO, Northern Virginia Technology Council
Rick Lally, President, Hampton Roads Technology Council
Ray LaMura, President, Virginia Cable Telecommunication Association
Rick Lane, Vice President, Government Affairs, News Corporation
Honorable Ryan T. McDougle, Senate of Virginia
Col. Rodney D. Monroe, Chief, Richmond Police Department
Officer Stan Moorefield, C.C.P.S., Virginia Association of School Resource Officers
Honorable Mark D. Obenshain, Senate of Virginia
William A. Pusey, Jr., Concerned Home School Parent
Thomas M. (Tommy) Quigley, Jr., Virginia High School Student
Donna Rice Hughes, Enough is Enough
Chuck Rosenberg, United States Attorney, Eastern District of Virginia
John Ryan, Vice President and Chief Counsel, America Online
Dr. Steve Shelby, West End Presbyterian Church
Honorable Kim Slayton-White, Commonwealth’s Attorney Halifax County
Carter Slough, Virginia High School Student
Robert J. Stolle, Executive Director, Greater Richmond Technology Council
Mr. John Titus, Principal, James River High School
Rosemary Trible, Community Leader
Joel Wiginton, Vice President & Senior Counsel, Government Affairs, Sony

Fourth Circuit and RLUIPA

Loblaw has this post titled "Fourth Circuit Knocks the Teeth out of RLUIPA."

In Madison v. Virginia, on appeal from the W.D. Va., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Michael and Duncan, held that the Religious Land Use and Institutionalized Persons Act is constitutional as applied to the Commonwealth of Virginia except to the extent that it authorizes awards of money damages.

On the Spending Clause issue, the Court rejected Virginia's arguments, including the claim that the Supreme Court's decision in Rumsfeld v. FAIR somehow restricted the authority of Congress - since after all, that case "rejected a Spending Clause challenge."

On the money damages issue, the Court concluded "that RLUIPA's 'appropriate relief against a government' language falls short of the unequivocal textual expression necessary to waive State immunity from suits for damages." The Court went on to conclude that the Civil Rights Remedies Equalization Act was inapplicable to RLUIPA.

This outcome sounds like one of those Rehnquist-era federalism decisions, but since the panel included Judge Michael it seems unlikely that there would be a different outcome on rehearing by the en banc court.

In Lovelace v. Lee, Judges Michael and Wilkinson disagreed on the claims of a Muslim inmate at Keen Mountain against prison officials under RLUIPA and the First Amendment. Judge Kiser for the W.D. Va. granted summary judgment for all defendants on all claims.

Judge Michael, joined by Judge Motz, vacated summary judgment against a correctional officer in his individual capacity on the plaintiff's Free Exercise and RLUIPA claims, and vacated summary judgment against the warden in his official capacity. Judge Wilkinson agreed the claims against the individual officer should go forward, but dissented as to the official capacity claims against the warden.

In response to Judge Wilkinson's strongly-worded dissent, Judge Michael explained: "Today's remand provides nothing akin to a license for courts to plunge into prison policymaking or prison management. We merely require that the prison itself explain in a responsive fashion why the Ramadan policy's burdens on religious exercise are justified under RLUIPA's standard. It is our dissenting colleague who delves into prison policymaking by coming up with his own reasons as to why the policy's restrictions are necessary to insure safety and security. If a court could, as the dissent would have it, offer explanations on its own, then prisons would be effectively relieved of their responsibilities under RLUIPA. Or what is more fundamental, court-generated explanations would cut severely against Congress's intent to provide inmates with greater protections in the area of religious exercise."

Of the claim against the warden, Judge Wilkinson wrote: "Thus the majority's remand must be seen for precisely what it is: an invitation to finetune prison policy from the judicial perch. While a prison policy may well be called into question where it imposes a substantial burden on religious freedom, this is not such a case. It is plaintiff Lovelace who must prove under the statute that the policy, as opposed to Lester's violation of it, somehow imposed a substantial burden upon his religious exercise, and he has not even begun to do so. To enlarge a case involving an essentially individual act into a wholesale attack upon a sound prison policy, on no fewer than three different grounds, not only makes a mountain out of a molehill but also reinforces the old adage that no good deed goes unpunished. Under the majority's view, the most progressive and enlightened prison policy imaginable, a policy that accomodates every religion in every way, would be called into question by a single policy violation. Forcing prison officials to pay for their own progressive steps to protect religious liberty runs counter to the precise statutory and constitutional provisions that the majority purports to enforce. I therefore concur in the judgment remanding the case for further proceedings against defendant Lester, but I respectfully dissent from the majority's RLUIPA, free exercise, and due process determinations as to the prison policy itself."

Somewhat obscured by these fireworks, the Court's discussion about qualified immunity strikes me as wrong. Judge Kiser held that the individual was entitled to qualified immunity because the constitutionality of RLUIPA was clearly established. Judge Michael rejected this conclusion, because at the time of the events in question, no court had yet ruled one way or the other on the constitutionality of the new statute. RLUIPA was passed by Congress after the Supreme Court held that its predecessor was unconstitutional. To say that its constitutionality was clearly established in 2002, when it was an open and difficult question for the appeals courts when they made their decisions in 2003 and later, seems to turn the qualified immunity analysis upside down. RLUIPA was born of constitutional uncertainty, which is the very stuff of which the qualified immunity defense is made.

The public defenders for the W.D. Va.

I finally noticed here the list of attorneys hired to staff the new office of the Public Defender for the W.D. Va. The list includes:

Randy V. Cargill, AFPD (Roanoke)
B.S. 1978 United States Military Academy (2nd in class)
J.D. 1984 University of Virginia
1985-1991 U.S. Army Judge Advocate General’s Corps
1991-2006 Private practice in Roanoke

Nancy Dickenson, AFPD (Abingdon)
B.A. 1982 Randolph-Macon College
J.D. 1987 University of Richmond
1994-1995 Commonwealth’s Attorney for Russell County
1995-2006 Private practice in Lebanon, Virginia

Andrea Lantz Harris, AFPD (Charlottesville)
B.A. 1988 University of Notre Dame
J.D. 1994 University of Louisville
1999-2006 Charlottesville Public Defender’s Office

Frederick T. Heblich, Jr., AFPD (Charlottesville)
B.A. 1971 University of Virginia
J.D. 1982 University of Virginia
1982-2006 Private practice in Charlottesville

Monroe Jamison, Jr., AFPD (Abingdon)
B.A. 1984 University of Kentucky
J.D. 1987 University of Kentucky College
1989-2006 Private practice in Abingdon

Fay Spence, AFPD (Roanoke)
B.A. 1982 St. Leo College
J.D. 1987 William & Mary
M.A. 2005 Old Dominion University
2005-2006 Public Defender, City of Newport News, Virginia

Christine Spurell, Legal Research and Writing Specialist (Abingdon)
B.A. 1988 Oberlin College
J.D. 1991 Harvard University (Editor & member of the Articles Office, Harvard Law
Review)
1991-1993 Prettyman Fellow, Georgetown Law Center
1994-1996 Law Clerk, Chambers of the Honorable Vanessa Ruiz, D.C. Court of
Appeals
1996-2001 Private practice, Washington, D.C.
2001-2003 Associate Chief Counsel, Food & Drug Administration Rockville, MD
2004 Law clerk, chambers of the Honorable Elizabeth McClanahan, Court of
Appeals of Virginia, Abingdon
2005-2006 Private practice in Abingdon, Virginia

Statewide or by congressional district

Sometimes you hear the idea that the Electoral College, for the selection of U.S. Presidents under the Constitution, should not be winner-take-all for each state. An alternative proposed by some is that the electoral votes should be awarded based on the vote in each congressional district, with the two leftovers going to the overall winner.

In 2006, it seems to say here that George Allen lost the statewide vote but was the winner in 7 of 11 Congressional districts in Virginia.

Non-filing of discovery mania

By rule and standing order in our federal court, discovery material is not to be filed.

Rule 5(d) of the Federal Rules of Civil Procedure says:

"All papers after the complaint required to be served upon a party, together with a certificate of service, must be filed with the court within a reasonable time after service, but disclosures under Rule 26 (a)(1) or (2) and the following discovery requests and responses must not be filed until they are used in the proceeding or the court orders filing:
(i) depositions,
(ii) interrogatories,
(iii) requests for documents or to permit entry upon land, and
(iv) requests for admission."

The standing orders include this one for Judge Jones ("That in civil cases, except prisoner actions, assigned to Judge James P. Jones, discovery material will not be accepted for filing by the clerk of court on or after October 1, 1996, unless filing of same is ordered by the court.") Judge Williams is arguably the exception, but I think Rule 5(d) applies to his cases as well.

Nevertheless, we have in our district the practice of filing "discovery letters," which I never do. If the discovery request itself is not to be filed, why would the cover letter be filed? Similarly, I am opposed to the filing of deposition notices and other flotsam and jetsam related to discovery unless and until the Court orders their filing, or their are part of a motion, or they are attached to some subpoena on which a return of service has to be filed. It seems to me that these papers should not be filed because they are no use to the Court and their filing is at odds with possibly the letter and certainly the policy of the rule against filing discovery material.

Am I wrong about this?

Wallace bows out, will others do likewise?

ACSblog posts that Fifth Circuit nominee Michael Wallace is asking that his nomination be withdrawn, the post notes the usual complaints about Fourth circuit nominees Boyle and Haynes and that the Washington Times has editorialized that President Bush should name other people to try to get some more appeals court judges confirmed while he still has the chance.

There is no shortage of good judges who could do the job.

A dog's life

Chrissy was a former Death Row inmate, whose sentence was commuted to house arrest, when we brought her home from the Animal Shelter. Still, she felt the Call of the Wild, and lived in absolute certainty that beyond the friendly confines of the fences of our backyard, there were kitties and squirrels running amok, and other puppies wanting to play. So, Chrissy sought every way she could to see more of the Outside. When a misplaced winter boot knocked off a chunk in the side gate, leaving just enough room for a black nose and two black eyes, ever after the puppy Chrissy used that spy hole to peer out at the Town.

The house where we lived was old and odd. At one time in its history it had been rented out as two apartments, upstairs and down. In the back, there was a rickety wooden staircase leading up to the small deck by the upstairs door. The kitchen and downstairs bathroom were a single story, attached to the back of the house, next to the stairs. From the deck atop the stairs, the puppy learned she could slide through the rails and step on to the shingled roof of the kitchen.

"What's that?" asked my wife, standing at the bathroom sink. She heard a noise on the roof above her, and looked up to see the puppy's tail swishing above her. The dog had walked over the crest of the kitchen roof, so she could peer around the corner to see the World, and now she could also look through the sky-light down into our bathroom. We ran out to the backyard to rescue the puppy. Terry, the next door neighbor, hollered out, "Hey, Steve, you've got a dog on your roof."

From then on, we had to block the stairs, so the puppy could not go all the way to the top. So long as we lived there, the dog lounged on the stairs. When she grew too old and wide to fit through the rails, she liked to sleep under the stairs, on the cool bricks, peering out at trespassers in the alley behind the house -- the kitties and squirrels and sometimes dogs and people. If they trespassed too long, Chrissy would run up the length of the yard to bark at them through the wire fence. As for the squirrels and the kitties who dared to set foot inside the fence, the puppy chased after them, hoping to sink her teeth into their swishy-swishy tails.

As Chrissy became old, we moved from the old house with the rickety stairs to a new place, in a neighborhood with many dogs, and bunnies and squirrels, and little girls who called out, "Hey, can we pet Chrissy?" There was an exciting boy-dog across the street. Chrissy won every staring contest with the curious young cows who caught her eye in the field behind us.

But in the years at the new house, our walks got shorter and shorter. At first, she could walk to the other end of the street, then just to the stop sign, then just two doors down, then one door, then to the mailbox, then not at all. To the end, she took in a breeze like some people take in a concert, with her head back, eyes blinking, enjoying the the full range of the symphony of scents. Her last day was Wednesday, a sunny day, the hardest day.

Bye, old friend

What I got myself for Christmas

Thanks to Robbie and the Mid-Mountain men.

Jimmy Stewart and his old dog

With the end near for our dog, I am reminded of Jimmy Stewart's poem about his dog, which is more compelling when you watch this clip from the Tonight Show.

Waiting for Hillary

The Washington Post has this article about how the so-called balance of power on the Fourth Circuit may change if the Bush administration continues to fiddle with the increasing number of vacancies.

One quote from the article: "Imagine the people Hillary Clinton would appoint to the 4th Circuit."

That's what I did here. I note that Ms. Tate is tight with the Senator Webb camp, that's one way to become a federal judge.

There's a typo in that earlier post, I wrote Nadine "Strosser," when I meant Nadine Strossen. "Strasser" was the name of the evil Nazi major shot by Bogart at the airport in the final scene of Casablanca. I apologize for this error.

New dean at ASL

It says here that the Board of Trustees of the Appalachian School of Law have selected Professor Wes Shinn as the new dean.

Professor Shinn at one time was part of the Stone Pigman firm in New Orleans. (I always look people up on Westlaw.) Stone Pigman is, among other things, the liaison counsel for Merck in Louisiana where the Vioxx MDL proceedings are ongoing.

Dairy diet litigation gets booted from E.D. Va.

The Washington Post reported here on the dismissal of litigation against the dairy industry for promotion of the "dairy diet." The article says in part:

"But a federal judge has ruled that under Virginia law, Holmes and other people can't take on the industry in court -- only a government entity such as the Virginia attorney general's office can. The decision last week by U.S. District Judge Leonie M. Brinkema in Alexandria threw out the lawsuit Holmes filed last year.

In her ruling last Thursday, Brinkema said Virginia consumer protection law allows people to seek monetary damages but not a broad injunction regulating an industry. She did not address the science of the debate, writing that such federal agencies as the Food and Drug Administration and the Federal Trade Commission are better equipped to do so.

In the lawsuit, filed in Alexandria Circuit Court and moved to federal court, the physicians committee accused the dairy industry of promoting the weight-loss notion through a "massive, deceptive advertising campaign." The committee says overwhelming scientific evidence shows that dairy products cause weight gain or have no effect. The only studies showing otherwise, the committee contends, are industry-funded.

Holmes is the sole plaintiff in the lawsuit, filed against such companies as General Mills Inc. and the Dannon Co. Inc. and three dairy industry trade groups. In addition to damages for Holmes, the suit seeks an order halting the dairy industry campaign."

Seven candidates for Albemarle circuit court answer questions

The Daily Progress has this report on a forum for the candidates to succeed Judge Peatross.

Locally, the General Assembly will replace Juvenile and Domestic Relations Judge Gene Lohman. I don't think we will see a similar event for would-be judges looking to replace him.

Best reason to boycott Kingsport

They're putting in those red-light cameras, according to this report.

Some guy with the City is quoted as saying: "This has never been about revenue. It was about safety from the beginning. It still is and will continue to be."

I guess he never read the study described here, or the others like it.

Not a convert

Somewhat in the manner of the Jaded JD, it has been written over at the Booby Hatch that "Mr. Minor" hasn't a clue.

I'm arguing collateral estoppel this afternoon, yet hoping that the adjudication from the Booby Hatch will not be binding.

Bad news from Roanoke

Ruby the Tiger has been put to sleep, or so it says here. The Roanoke paper has pictures of Ruby here.

Motley crew

I just saw this month-old collage, and decided to pirate it. Here's the place of origin. Well done, Badrose.

An unexpected dividend of blogging is having met all those people, or most of them.

Blog v. dog

As we debate morning, noon, and night how much longer to keep Chrissy, I recollect this Scheherazade post, where she asked the question, which would you give up, the blog or the dog?

My answer in January, 2004:

"My dog is 13, bad legs, bad hearing, bad breath, bad manners. She was once declared 'cute' by a future federal judge as she wagged her tail at him in the middle of our town.

I'd say we'd give up about everything we've got for her, if it comes to that, but I'm afraid it won't."

Almost three years later, that's about the size of it - there's nothing much we can do but try to figure out when enough is enough. In this old photo, the dog looks like she is expressing her view of the situation.



S. also wrote this memorable post about her favorite Google search term, which makes me think that things could be worse.

The Christians and pagans in Albemarle County

Reason has this post which begins:

"Albemarle County Virginia public schools allowed pagans to distribute flyers in the backpacks of school children inviting them and their families an event this weekend where they can learn about and participate in pagan yuletide rituals. Some outraged Christian parents objected. But the delicious part of this story is that a threatened lawsuit by Jerry Falwell's Liberty Counsel legal aid group is the reason the pagans can issue such invitations through the public schools."

On the bright line rule of Jones v. Jones

Back in October, in the case of Jones v. Jones, the Virginia Court of Appeals in an opinion by Judge Humphreys joined by Judge Elder and Senior Judge Annunziata held that the notice of appeal was a nullity because appellant's counsel was suspended from practicing law at the time it was filed.

The ABA Journal eReport published this article about the case, which begins: "If an attorney with a suspended license files a notice of appeal, the client will pay a price, even if neither the lawyer nor the client knew of the suspension, the Virginia Court of Appeals has ruled."

Carolyn Elefant weighs in: "Stupid result, in my view. Where an attorney knowingly files an appeal and isn't licensed to practice, he deserves blame for the result. But where an attorney doesn't know, why should the client be penalized? In this case, the events all took place over a short period, with the former attorney withdrawing at the beginning of July 2005, the new attorney filing notice of appeal August 9, 2005 and the suspension ending on August 25, 2005. Had the client's new attorney realized that he was suspended through the end of August 2005, he could have asked the client's former attorney to lodge the appeal (or the client could have filed pro se) and stepped in to the case when his suspension concluded. The court's approach rejected this sensible outcome and penalizes the client for an easily avoidable situation."

Fair or not, it sounds like a Virginia ruling to me. Appellate practice in Virginia is gotcha-law. The Court of Appeals based its decision on Nerri v. Adu-Gyamfi, 270 Va. 28, 613 S.E.2d 429 (2005), which in turn relies on Wellmore Coal Corp. v. Harman Mining Corp., 264 Va. 279, 568 S.E.2d 671 (2002), the case involving the multi-million dollar judgment from Buchanan County where only the Kentucky lawyer signed the notice of appeal. Similarly, the Washington Post series on the sorry state of funding for indigent defense in Virginia noted the high level of appeals in criminal cases that are dismissed on procedural grounds. It's pass/fail, the Rules are not intuitive, counsel has relearn them for every appeal. Somehow, the federal appeals court manages to get by without the same harshness, in fact, the clerk's office pretty much spoon-feeds the lawyers from start to finish. I've never heard any of the judges or justices state why they believe the state court rules are just. Steve Emmert in his commentary on the case charitably attributes to Virginia's appellate benches the view that they "genuinely dislike procedural dismissals, and try to avoid them where they can."

Also, I don't know whether the outcome in Jones would be different in a federal case As Marcia Oddi explains here, linking to this article by Howard Bashman, lawyers get fried in federal appeals, too (particularly by two famous Seventh Circuit judges).

I also wonder whether Jones would have been different if the client had also signed the notice of appeal - unlike the parties in the Wellmore case, an individual could represent himself or herself.

Get your bargain lawyer

Some excerpts from the ALJ lawyer fee survey, with rates for associates of different degrees of seniority:

Dickinson Wright (226) (Detroit)
1st $160 5th $200
2d $165 6th $220
3d $175 7th $230
4th $185 8th $240

Dinsmore & Shohl (306) (Cincinnati)
1st $160 5th $200
2d $170 6th $210
3d $180 7th $215
4th $190 8th $225

Hiscock & Barclay (160) (Syracuse, N.Y.)
1st $160 5th $170
2d $160 6th $180
3d $170 7th $180
4th $170 8th $195

Morris, Manning & Martin (174) (Atlanta)
1st $170 5th $305
2d $225 6th $315
3d $270 7th $340
4th $285 8th $350

Phillips Lytle (173) (Buffalo, N.Y.)
1st $130 5th $175
2d $145 6th $185
3d $150 7th $195
4th $165 8th $210

Shumaker, Loop & Kendrick (162) (Toledo, Ohio)
1st $165 5th $195
2d $170 6th $200
3d $180 7th $215
4th $190 8th $220

Those were the lowest figures on the list.

Carolyn Elefant at My Shingle says small firm lawyers ought to use this list to show what bargains they are.

Still more on one space v. two spaces

Via this week's Blawg Review, I learned of AdamsDrafting, which has this post siding with the one space camp, of which I am a member.

It says in part:

"The Chicago Manual of Style 2.12 (15th ed. 2003) says 'A single character space, not two spaces, should be left after periods at the ends of sentences (both in manuscript and in final, published form) and after colons.' To my mind, that settles it, but I’ll note that The Associated Press Stylebook (2004) also calls for one space. So does Bill Walsh’s Lapsing into a Comma (2000). . . .

Of course, law firms and most lawyers are wedded to two spaces. It would be a mistake to assume that this is the result of a reasoned decision. Instead, you can attribute it to the same oblivious conservatism that has caused them to perpetuate any number of other deficient usages.

As the online Chicago Style Q&A states, there's no evidence that using two spaces makes text easier to read. Consequently, the only conceivable defense of the practice is that it's harmless. But as also noted in the Chicago Style Q&A, using two spaces is inefficient, requiring an extra keystroke for every sentence, and is harder to control, in that any document created using the two-space rule is likely to contain a 'a smattering of instances of both three spaces and one space after a period, and two spaces in the middle of sentences.'

So if you're still using two spaces, stop it - your credibility is at stake!"

Plaintiff/counter-defendant cannot remove case based on federal question in counterclaim

In Great Eastern Resort Association v. Bluegreen Corporation, Judge Wilson ordered the remand of a case where the original plaintiff sued some former employees in state court, the employees counterclaimed under the Fair Labor Standards Act, and the original plaintiff filed a notice of removal based on the counterclaim.

Can you even bring a counterclaim under the FLSA in state court? Maybe so.

Maybe he needed a referral from my wife's uncle

In Underwood v. U.S., on the petitioner's claim for post-judgment relief from his conviction, Judge Wilson concludes his opinion with these words:

"Underwood, who is not an uneducated man stubbornly states, apparently for effect: 'my lawyer done me wrong.' Yet, here the facts are equally as stubborn, and his lawyer is simply that, a lawyer. He is not a magician. He cannot make the stubborn facts disappear."

The uncle, by the way, is the author of Inclined Toward Magic: Encounters With Books, Collectors, and Conjurors, which I think is his mostly first-person account of a lifetime of collecting books about magic. He also put together a book called Wizard Exposed: Magic Tricks by and Interviews With Harry Houdini Howard Thurston and Other Past Masters of Magic. Many years ago, we had dinner at the in-laws with David and one of his old magician buddies, who then performed a few magic tricks, successfully and without damage to persons or property.

Pain doctor's conviction affirmed

In U.S. v. McIver, the Fourth Circuit in an opinion by Judge Duncan affirmed the conviction of a physician for over-prescribing pain medication.

The facts of the case prompted this insightful Loblaw post, which says in part:

"A doctor getting prosecuted for overprescribing narcotics? That’s pretty common. But what’s uncommon – I hope – in this Fourth Circuit appeal is how the defendant got caught. A patient’s insurance company contacted the DEA because the patient was filling so many prescriptions for oxycodone. I suppose that is one way to keep insurance costs down."

Bear Bryant and civil rights

Today's Bristol paper had an article on the local author of Career in Crisis: Paul "Bear" Bryant And the 1971 Season of Change, David Briley, a professor at ETSU. The article is here, and it is far better than average for the otherwise incompetent Bristol paper.

It notes: "The scholarly accent to Career In Crisis is based around a lawsuit that was filed by the Afro-American Student Association. The association filed a lawsuit against Bryant, the University of Alabama, its board of trustees, chairman of the executive committee, university president and secretary of the U.S. Department of Health, Education and Welfare on July 2, 1969."

As I've written elsewhere, the first bowl game I recall was the 1973 Sugar Bowl.

Last look back at Commonwealth Conservative caption contests - my personal favorites

With both thumbs still upright, the finale of celebrity thumbwrestlemania was declared a draw.



When neither would agree to be the tail end, they both showed up only half-assed.



Overestimating the comic book literacy of the Blacksburg co-eds, he never understood the failure of what he thought was his best line: “If you like my Hulk, wait ’til I show you my Thing.”



Deciding what face to wear for rural voters, she chose the mule chewing briars.



After the Communists invaded Afghanistan, my original thought was to boycott the World Series, but then Mondale suggested the Olympics.



The whole gang on Easter Island loves the Reds.



In subsequent litigation, the manufacturer came to regret its advertising claim that the new model was great for cooking brats.

More on Chief Judge Wilkins taking senior status

Here are more articles on the "retirement" of Chief Judge William Wilkins of the Fourth Circuit:

From The State in South Carolina: Judge Wilkins stepping down

From the AP: Chief judge of 4th Circuit to step down

From the Richmond paper: Appeals court's chief judge to retire

The gossip at Southern Appeal is that Judge Wilkins plans to run for Governor of South Carolina, which sounds absurd to some of the commenters.

Time Magazine takes on the Derek Tice case

The Time article begins:

"Eight years ago, Derek Tice walked out onto his porch and found an entire swat team with all their guns pointed at him. He was convicted of murder, twice, in two separate trials, and sentenced to life in prison. To many observers in Norfolk, Virginia at the time, it had seemed like an open and shut case — a tape of Tice's own confession to the 1997 rape and murder of Navy newlywed Michelle Moore Bosko, 18, was played for the juries. But Tice and two other former Navy sailors convicted in the murder later insisted that they had fabricated the confessions after detectives had subjected them to harsh and manipulative questioning. The one other man convicted for the murder — and the only one whose DNA was linked to the crime — has since recanted his claim that the other men were involved and now insists that he acted alone. The whole argument may seem like a stretch — it certainly did and does to the victim's family — but on Wednesday a Virginia judge accepted enough of it to rule that detectives had not honored Tice's right to remain silent and overturned his sentence after almost a decade in custody."

UPDATE: The Washington Post has this editorial on the case.

Volokh on Miller-Jenkins

This Volokh post takes on the Virginia Court of Appeals' decision in the Miller-Jenkins case.

One of the commenters gets to the nub of the matter, as I see it:

"I am curious as well whether under Vermont law the child custody determination is considered an intrinsic claim/remedy in the dissolution of the civil union as it is in divorce actions. This would create the Catch 22 where a parent wishing to dissolve a civil union (so as to sever the property/inheritance/etc. rights created thereby)might have to submit to Vermont's jurisdiction over custody issues because their new home state doesn't recognize civil unions or a cause of action to dissolve them."

The related discussion poses the question, could a Virginia court dissolve a Vermont "civil union"?

Another hearsay gem from Buchmeyer

This one made me laugh out loud:

Prosecutor: On the photograph, what are on the brown, blood-like smudge?

Mr. Heu: From my zoological background, I keyed in on it because it had ants on it. [This was significant because it] indicated to me that it was fresh material rather than something that was days or weeks old.

Prosecutor: First of all, is there a difference between worker ants and soldier ants?

Mr. Heu: Yes. The soldier ants have large heads and the worker ants have small heads. The worker ants go out to forage - to find something. If it's a large find, the word will go back to the ant nest. The ants will send out more workers and if it's a big find, they'll send soldiers along.

Defense Attorney: I object to the materiality of the witness' statement.

The Court: Your objection is on the grounds of relevance?

Defense Attorney: Yes, sir. It's also hearsay as to what the ants tell each other.

The Court (wisely): Objection overruled.

On being oppressed by paper money

Overlawyered has this post which says a federal judge has ruled that "the U.S. Treasury Department is violating the law by failing to design and issue currency that is readily distinguishable to blind and visually impaired people."

The opinion from the D.C. District Court is here.

Chief Judge Wilkins takes senior status?

SC Appellate Law Blog reports here that Chief Judge Wilkins is sending notice today that he is taking senior status. The post goes on to speculate on the future makeup of the Fourth Circuit. It says Judge Karen Williams will be the next chief judge. As described here, I am a fan of Judge Karen Williams.

I figure by this time in 2009, Gerald Gray, Mary Lynn Tate, and Nadine Strosser will be on the Fourth Circuit, at the rate things are going.

New rule on pro hac vice counsel in Virginia

Virginia Lawyers Weekly is reporting that the Virginia Supreme Court has adopted a new rule restricting the appearance of out-of-state counsel pro hac vice in Virginia cases.

I hate these kinds of rules when I go to West Virginia or Kentucky. Here on the Virginia-Tennessee border, I have not heard that there is a problem of Tennessee-only licensed lawyers running amok on the Virginia side.

So long as there is local counsel licensed Virginia at every hearing and every deposition and on every paper, and so long as pro hac vice lawyers are subject to Virginia discipline, the rest seems like a waste to me, including the fees and paperwork.

More on the Miller-Jenkins opinion

Michael Hardy wrote this article for the Richmond paper, which begins: "In an emotional struggle over parental rights arising from a former lesbian union, the Virginia Court of Appeals ruled yesterday that Vermont courts, not Virginia's, have exclusive jurisdiction in the custody battle. The decision, based on a narrow jurisdictional issue, is a preliminary round in the court battle that probably will reach the Virginia Supreme Court and perhaps the U.S. Supreme Court. Lawyers for the losing, biological mother yesterday vowed to appeal."

The Rutland, Vermont Herald has this report, which begins: "It didn’t take long Tuesday for news of a Virginia court’s ruling in a child custody case to travel north more than 550 miles to Janet Miller-Jenkins’ home in Fair Haven."

The New York Times has this article by Adam Liptak, who concluded: "The decision averted, at least temporarily, a collision between the civil unions for same-sex couples recognized in Vermont and the Virginia law."

Overlawyered has this post, which says in part: "Some social-conservative commentators had unwisely applauded the efforts of Liberty Counsel, a misnamed Religious Right litigation strike force, to help client Lisa Miller evade the jurisdiction of a Vermont court order ordering visitation rights to former partner Janet Jenkins."

Reefer madness

From an opinion by Magistrate Judge Sargent of the W.D. Va.:

"While there are disputes in the evidence with regard to whether Williams had been advised of his Miranda rights prior to making the statement at issue and whether the statement was made in response to a question, I find that the more credible version of the events comes from Haley. I base this finding on the fact that Williams admitted that he had begun smoking marijuana from the moment he awoke that morning and continued to do so until the vehicle was pulled over."

Virginia Court of Appeals tiptoes around DOMA in Miller-Jenkins case

In Miller-Jenkins v. Miller-Jenkins, the Virginia Court of Appeals avoided application of the federal Defense of Marriage Act.

The Court wrote:

"Simply put, DOMA allows a state to deny recognition to same-sex marriage entered into in another state. This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ’s custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed herself and the child before that court and laid before it the assertions and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum precluded the courts of this Commonwealth from entertaining countervailing assertions and prayers."

The result sought by DOMA, 28 U.S.C. 1738C, was that "in the event Hawaii (or some other State) permits same-sex couples to marry, other States will not be obligated or required, by operation of the Full Faith and Credit Clause of the United States Constitution, to recognize that marriage, or any right or claim arising from it." H.R. Rep. 104-664, 23, 1996 U.S.C.C.A.N. 2905, 2929. Arguably, perhaps, the custody rights at issue arose from Vermont's recognition of rights for same-sex civil unions. On the other hand, I suppose the Court is saying that the custody rights at issue arose from the Virginia Ms. Miller-Jenkins' decision to litigate custody in Vermont.

DOMA was passed under the authority of Congress under the second sentence of the Full Faith and Credit Clause: "The Effects Clause is an express grant of authority to Congress to enact legislation to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States. To state it slightly differently, Congress is empowered to specify by statute how States are to treat laws from other States. Read together, the two sentences of Article IV, section 1 logically suggest this interpretation: While full faith and credit is the rule-that is, while States are generally obligated to treat laws of other States as they would their own-Congress retains a discretionary power to carve out such exceptions as it deems appropriate." H.R. Rep. 104-664, 25, 1996 U.S.C.C.A.N. 2905, 2930.

The attempt by the Court in Miller-Jenkins to distinguish between marriage and its "effects" is at best inadequately explained. By glossing over the conflict between DOMA and the Parental Kidnapping act, the Court avoided the monumental question of whether DOMA itself is constitutional.

Anyhow, this decision advances the issue for resolution by the U.S. Supreme Court, one of these days, since it is based on the federal Parental Kidnapping statute. The decision also highlights the irrelevance of the recently-passed marriage amendment in Virginia. The Court blows past all Virginia law provisions as fully preempted by the federal law. An amendment to the Virginia constitution would be no less preempted.

Environmental court in Wise County?

Here you can find the following letter to the editor of the Roanoke Times:

Once again, Southwest Virginia is leading the way in the state for litter control and local environmental protection.

The assign-a-highway program that utilizes the endless supply of labor from probationers got its start in Buchanan County, has spread to almost all the coalfield counties and is now adopted in several other state jurisdictions, including the Eastern Shore.

Judge Joe Carico, a former prosecutor and deputy attorney general, has launched the state's first environmental court in the Wise County General District Court. He has levied hefty penalties, up to $5,000, against litterbugs and people who dump trash and waste along roadsides and into streams.

Many coalfield counties have adopted ordinances, allowing their litter wardens to bring such cases to court under Virginia statute. Enforcement that hits the pocketbook stops littering and dumping.

Only the most dedicated idiots now dump trash in our region, and they are routinely caught with hidden cameras and very dedicated litter control wardens.

It's now hard to find roadside trash in Buchanan, Tazewell and Dickenson counties, and Wise and Russell counties are gaining ground.

Carico deserves our thanks for being innovative. Hopefully, his idea will catch on in the rest of the region and state.

FRANK KILGORE
ST. PAUL

The perils of in-state rivalry

The headline says it all: SC fan shoots, kills Clemson fan over $20 bet.

McDavid

After I came back from this year's trip to Italy, I wrote that Florence was a bit overrun with commercialism, and we saw the David indoors and outdoors, but I never thought it would come to this, via BoingBoing.

Posner on raising the minimum wage

Judge Posner writes here:

"Increasing the federal minimum wage, currently $5.15 an hour, is a priority of the new Democratic Congress. Democratic leaders want to raise it by 40 percent, to $7.25 an hour. From an economic standpoint, even from an egalitarian standpoint, raising the minimum wage, especially by such a large amount (roughly 10 percent of the American workforce makes less than $7.25 an hour, which is double the percentage of the workforce that is paid the current minimum wage), would be a grave mistake."

I once dealt with an expert witness who in calculating future wages used some rate of wage growth based on the historic rate of increases to the minimum wage by Congress. The minimum wage? That's just some artificial number with no relation to the market, I declared. He said, well, that depends on your politics. I said, that's exactly right, it's all politics. I suppose he was correct that the wages paid for some lower-income jobs are affected by the minimum wage, but betting on Congress seemed like poor science to me.

On no federal class action in the Vioxx cases

The ruling by Judge Fallon denying certification of a nationwide class action in the Vioxx cases is here, noting that "courts have almost invariably found that common questions of fact do not predominate in pharmaceutical drug cases."

Indeed, the big products liability class actions are almost all in state court and not federal court, but not in Virginia, where there is arguably no authority for class actions, as discussed here.

New W.D. Va. standing order on filing cases

I read this new order and wondered whether it is somehow related to the opinion in Cornett v. Weisenbarger by Judge Williams, dealing with a case of late payment of the filing fee (among other things).

It would seem to simplify the issue Judge Williams confronted, in addition to dealing with multiple payments of the filing fee.

The filing fee is the weakest link in electronic filing, I've had the experience myself where the credit card on file had expired, and so the clerk's office would not charge the account until someone called and gave them the new expiration date.

Perhaps they could hold symposia in the Rotunda

Professor Althouse reports from the halls of the academe here on the "fat studies" movement. Would that be a "growing" movement, I wonder?

On O.J.

I'm sick of news stories about the man Fred Goldman supposedly refers to only as "the killer," but I must confess that over the years, I have read many books about the lawyers from the O.J. Simpson case, of which the most compelling is the later edition of the Schiller book that includes the chapters on the civil case.

While the O.J. criminal trial was going on, we had a client who was on trial for sex harassment, call him "James." He claimed to be a big O.J. fan, watched the replays of the trial every night on cable. So I told him I had an idea for his defense that he would surely appreciate - we would declare to the jury that "James" was just as innocent as O.J.!

The client vetoed this brain wave.

Progress

From this ranking of law reviews, I surmise that the William & Mary Law Review has long since escaped the effect of its association with me, but perhaps retained the same as regards Dawn Figueiras.

Waldo takes on judicial selection

In this cvillenews.com post, Waldo Jaquith tries to figure out who will replace retiring Circuit Court Judge Peatross and how will he or she be selected. And, the commenters don't like one of the names being bandied about.

Does the mineral rights owner own the plain old rocks, too?

The Charlottesville paper had this interesting story, which says in part:

"In Tennessee, a mineral-rights owner has declared common rocks as his property and intends to harvest them although the owner of the land objects. The landowner and his neighbors are fighting the precedent in court.

The case might have implications for those parts of Virginia where mining and mineral rights have a history.

. . .

But coal mining is no longer a major force in the region north of Chattanooga, Tenn., where Ed Lewis lives. So Mr. Lewis never expected that anyone would exercise an option on the mineral rights on his property.

But the former owner retained those rights and now claims that the rocks on the property are his to be mined.

It’s not coal that he wants, but a newly fashionable form of resource wealth: building stone. Sandstone, flagstone, fieldstone have become popular for building or decorating fireplaces, walls, fences. Tennessee stone is now shipped all over the country."

On Hughes v. Moore

On the front page of this week's Virginia Lawyers Weekly is an article about the decisions by Magistrate Judge Sargent and Judge Glen Williams in the Hickman case from the W.D. Va.

The article points out that the leading case in dealing with the exception to the physical injury requirement for negligence claims is Hughes v. Moore. Judge Williams' opinion attempts to harmonize Hughes and the Virginia Supreme Court's later decision in Myseros v. Sisler.

What the article does not mention is that the lawyers in Hughes v. Moore, decided back in 1973, were Glen Williams for the plaintiff and Charles Flannagan for the defense. Judge Williams (as a lawyer) convinced Lee County Circuit Court Judge Cridlin at trial to allow recovery for the plaintiff, and Judge Flannagan (as a lawyer) appealed. The plaintiff's verdict was $12,000, where the medical bills were $112.

Right up there with Wilt Chamberlain

This USAToday profile of Dawn Staley is great.

It says in part:

By basketball standards, it has been hard for the 5-6 Dawn Staley to measure up.

She was always told she was too short, too little, too slow. But the more she was told she couldn't, the more determined she became.

"I grew up in the projects of North Philly," Staley says, "and the mentality of growing up there has helped me to maintain a certain level of aggressiveness, mental and physical toughness."

Staley, 36, is a three-time Olympic gold medalist, a five-time WNBA All-Star and made three Final Four appearances at the University of Virginia, where she was two-time NCAA player of the year.

. . .

The diminutive Philly kid is now using her basketball knowledge to make her mark in the coaching community.

After leading Temple to four NCAA Tournament berths, she was named an assistant on the 2006 USA women's world championship team. The two-time Atlantic 10 coach of the year hopes to be an assistant on the 2008 Olympic team and possibly the head coach at the 2012 Games. And there could be a WNBA head coaching position in her future.

. . .

Staley's impact on the women's game hasn't been limited to the basketball court. She has made a difference through her foundation.

Beginning next season, the WNBA's annual community award will be named the Dawn Staley Community Leadership Award.

"She is the face of women's basketball right now because of her big heart," says Cynthia Cooper, the four-time WNBA champion and currently women's basketball coach at Prairie View A&M University. "She constantly gives back to the community. I think her heart comes from her parents, her background and the trials and tribulations she had not only growing up, but excelling at basketball."

The Dawn Staley Foundation at the Hank Gathers Recreation Center in Philadelphia focuses on academics and athletics and provides middle-school children with positive influences in their lives.

Staley's background and world travels prompted her to start the foundation and are what helps her recruit and relate to players from all backgrounds.

By the numbers

An SAT-style question - what's the next number in this sequence - 1984, 1987, 1988, 1989, 1991, 1992, 1994, 1997, 1998, 2003, ?

Hint:

Nov. 25, 2006: ?
Nov. 19, 2005: Tech, 52-14
Nov. 27, 2004: Tech, 24-10
Nov. 29, 2003: U.Va., 35-21
Nov. 30, 2002: Tech, 21-9
Nov. 17, 2001: Tech, 31-17
Nov. 25, 2000: Tech, 42-21
Oct. 2, 1999: Tech, 31-7
Nov. 28, 1998: U.Va., 36-32
Nov. 28, 1997: U.Va., 34-20
Nov. 29, 1996: Tech, 26-9
Nov. 18, 1995: Tech, 36-29
Nov. 19, 1994: U.Va., 42-23
Nov. 20, 1993: Tech, 20-17
Nov. 21, 1992: U.Va., 41-38
Nov. 23, 1991: U.Va., 38-0
Nov. 24, 1990: Tech, 38-13
Nov. 11, 1989: U.Va., 32-25
Oct. 29, 1988: U.Va., 16-10
Sep. 19, 1987: U.Va., 14-13
Oct. 25, 1986: Tech, 42-10
Oct. 19, 1985: Tech, 28-10
Sep. 29, 1984: U.Va., 26-23
Nov. 19, 1983: Tech, 48-0

Law books I'd like to get for Christmas

In no particular order,

1. Evan Schaeffer, Deposition Checklists and Strategies
2 and 3. Pozner & Dodd, Cross-Examination: Science and Techniques, Second Edition and Herb Stern, Trying Cases to Win: Cross-Examination
4. Ruggero Aldisert, Winning on Appeal: Better Briefs & Oral Argument
5 and 6. Bryan Garner, Garner's Modern American Usage and The Winning Brief: 100 Tips for Persuasive Briefing in Trial and Appellate Courts
7. Cliff Atkinson, Beyond Bullet Points: Using Microsoft PowerPoint to Create Presentations That Inform, Motivate, and Inspire
8 and 9. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law and Stephen Breyer, Active Liberty: Interpreting Our Democratic Constitution
10 and 11. Andrew Kaufman, Cardozo, and Gerald Gunther, Learned Hand: The Man and the Judge
12. Mark Steiner, An Honest Calling: The Law Practice of Abraham Lincoln

Somehow I've managed to get by without these before now.

Old dog's last road trip

We took the old dog to Midlothian for the long weekend.

I can't say that she had a good time, but in this picture she has her ears up and is ready to see what's going on in the world.

To walk outside, she uses a "rear-end leash" bought from HandicappedPets.com. To walk inside, well, she can't really walk inside any more.

Watch what you ask for

From the Winchester paper comes the following tale of the retrial of a wrongful death case, resulting in a sharply reduced verdict for the grieving widow:

Widow of motorcycle crash victim gets $1 for sorrow, nothing for economic losses

By Erica M. Bush
The Winchester Star

Winchester — The widow of a motorcycle accident victim will receive $1 for her sorrow and nothing for her economic losses, a jury decided on Thursday.

The Frederick County Circuit Court jury made its ruling in the retrial of a wrongful-death suit that had awarded $961,065 to the survivors of the crash victim.

Another jury previously found Minnick’s Auto Repair of Winchester liable for the July 25, 2004, death of 32-year-old Anthony Wright.

....

The wrongful-death lawsuit — filed by Wright’s widow, Christa — claimed that the Minnick’s tow truck driver, Bernard W. Everhart Jr., drove recklessly and backed into the road without looking for traffic, which caused Wright to crash after trying to avoid the truck.

....

On March 31, jurors in the first wrongful death trial awarded the plaintiffs — Christa and Anthony’s brother, Michael Wright — $10,534 for hospital expenses, $7,996 for funeral costs, and $942, 535 for the loss of income, services, protection, and care that had been provided by the victim.

A new trial was ordered after the jurors failed to award an amount to the plaintiffs for their sorrow.

Legally, the jurors should have awarded some amount, which could have been as low as $1.

On Thursday, the new jury awarded Christa $10,534 for hospital expenses and $7,996 for funeral expenses. She received $1 for her sorrow and nothing for her economic loss.

“They killed him and that’s it!” she said as she dropped to the floor screaming and crying in the hallway of the courthouse after the verdict was read.

Taking the stand on Thursday, Christa Wright fought back tears as she told the court she and her husband of 12 years were soulmates.

....

But James T. Bacon, the attorney for Minnick’s, argued that Anthony was separated from Christa at the time of the accident and that she should not profit from his death.

Witnesses testified that the couple were estranged at the time of the accident.

....

Bacon asked the court to award Christa $1 for her anguish and nothing for the loss of income.

He also said Christa was with a boyfriend at the time of the accident.

Christa admitted that she stayed with the man the defense described as her boyfriend after Anthony’s death, but said they were just friends.

She also admitted having an intimate relationship with Anthony’s brother, Michael, after her husband’s death.

Michael, who Plofchan called to the stand on Thursday, said his brother and Christa had mentioned going to see a divorce attorney, but had called it off.

....

In his closing arguments, Bacon asked the jurors not to award Christa the $1 million the prosecution was asking for. “The plaintiff would not have profited while her husband was alive, and she should not profit from his death,” he said.

Bedford judge goes fishing

Here is a story about a Virginia general district judge in a fishing contest.

Fascinating stuff

Via Blog 702, the Tenth Circuit in Sims v. Great American Life Ins. Co. takes on the interplay between the Erie doctrine and the Federal Rules of Evidence.

The gist is that Erie does not apply to matters covered by the FRE, but nevertheless state policy informs the application of the FRE.

On democracy in action

Judge Posner has this interesting commentary on the 2006 election - the gist being, the system works.

Balkin has this interesting post on how it's not over yet for the conservatives - the gist being, conservatives never quite got control, but their fortunes can be somewhat retrieved in 2008.

The Richmond paper points out that changes in the Congress will mean less clout on the Hill for Virginia, although they might mean more clout for Southwest Virginia with Boucher back on the majority side.

Chad packs it in

My good friend Chad Dotson is going to stop blogging, going the way of past favorites Jaded JD, Have Opinion, and Sic Semper, among others.

I've known Chad for several years and he's had his fun with the blog but I think that it has also made some history. I've learned a lot reading his blog, and met a lot of people who read it and had something to say about it.

Well done, Chad.

Here was my first Chad Dotson post, and here was more of the same.