Interesting stuff

On using private lawyers as special prosecutors. The Roanoke paper reports here that Tim McAfee and Greg Stewart will get paid $150,000 for the handling of the Appalachia election fraud cases. The article notes that the cases in Gate City were handled by a Commonwealth's attorney from Botetourt County, at no extra cost.

On the Wren cross. Here a politico from the American Enterprise Institute takes on President Gene Nichols' decision to pull the cross from the Wren Building, after 300 years. Meanwhile, Governor Kaine said he wasn't offended by the Wren cross, but he wasn't going to tell anybody what to do. (I went to William & Mary but only for law school, so I'm not sure whether I've been in the Wren building, maybe when I was a kid.)

On judicial selection. Here's an article on four "highly qualified" candidates for the J&DR judgeship in Fauquier County. Here is an article on the retirement of two of three female judges in Norfolk, and discussing their replacement. The article says: "Lawyers and court officials have complained that the two people who are considered front-runners for those jobs would lessen the diversity of gender and experience on the bench," but also quotes Kai Memmer for the VWAA as saying "each candidate for a judgeship should be considered on his or her own merits." Tell 'em, Kai. Also, the Norfolk paper has this commentary that says Delegate Melvin's opposition to Judge Sword doesn't matter because his party doesn't have the votes to do anything.

On the big natural gas royalty verdict in West Virginia. What used to be Columbia Natural Resources has been sold a couple of times, they are a gas production company with operations in Kentucky and West Virginia, and their leases require them to pay royalties to the landowners or owners of the gas interests. On Saturday, a jury in West Virginia nailed them with a verdict of more than $400 million, including over $250 million in punitives, in a class action case. Here is a column from a Charleston paper about how the case affects the image of West Virginia, here is an article from Indiana - where NiSource, former owner of CNR, is based. Here is the press release from Chesapeake Energy, the new owner I guess.

Does the fellow servant doctrine apply here? This snippet from the Bristol TV station's news site says: "One person is in critical condition after an industrial accident at Bristol Compressors. It happened just before 2 p.m. Monday afternoon. Bristol, Virginia police say a worker named Glen Rosenbaum was injured when a robot that picks up items and places them in an oven, put Rosenbaum in the oven instead. Rosenbaum was air lifted to the Bristol Regional Medical Center."

Give it up. The Roanoke paper has more nonsense about the need for redlight cameras. Redlight cameras are unsafe and un-American. Who says unsafe? The people who wrote this Virginia study, among others. Redlight cameras are about money, not traffic safety.

Tuscaloosa looks at Virginia. This article is one in a series on the death penalty in Virginia, Alabama, and two other Southern states.

From Big Sandy to Big Salty? This article from the Richmond paper discusses the failure of a bill pressed by Buchanan County that would prohibit Consol from discharging salt water into the Levisa Fork. The bill HR 3088 was sponsored by Delegate Bowling.

Lions laying down with the lambs. The Washington Post reports here on the state of litigation between the warring camps of Episcopalians over who gets the church assets.

Speaking of splits. The Split Circuit blog points out that the Fourth Circuit's recent ruling in A.T. Massey v. Holland on the meaning of "reimbursement" under the Coal Act contributes to a circuit split on the issue, with the D.C. Circuit as the odd man out siding with the Funds. The issue in the Massey case was whether the word "reimbursement" as used in the statute that sets forth the manner of calculating premiums under the Coal Act should be based on the $182.3 million Medicare paid to the Funds or instead the $156.3 million in expenses incurred by the beneficiaries of the Funds. In a split decision, the Fourth Circuit concluded that the premiums charged to companies under the Act should be reduced to reflect the higher sum actually received from Medicare, even though the reimbursement exceeded the actual expenses incurred by the beneficiaries. John Woodrum argued for the appellees. Well done, John.

On Hughes v. Doe and unpublished opinions

I have sometimes written my opposition to unpublished opinions.

The Supreme Court's decision earlier this month in Hughes v. Doe involves almost precisely the same issue as what was before the Court in a case I had years ago and lost 7-0, in an unpublished opinion, whereas Doe only lost 5-2. This was the case where Justice Compton glared at me and declared, "Mr. Minor, what you're saying can't possibly be true." And, it might not be true, but the best reason why it is not true continues to escape the Court in Hughes, as it did in my case. The best argument is simply to recognize that the limitations defense of the employee is personal and cannot be asserted by the employer, just like a discharge in bankruptcy or qualified immunity in a section 1983 case. In effect, the employer lacks standing to assert the employee's limitations defense.

Instead of this simplified analysis, the Court has gone off on a tangent, declaring a limitations dismissal "not on the merits," in a way that will surely generate litigation for years to come. So, if I bring a claim on an oil and gas lease that involves some performance in Virginia and some in Kentucky (as I have done, in fact) in Virginia court and the Virginia court rules the claim is time-barred under the relatively short five-year Virginia statute of limitations for claims on a written contract, I can pack up and refile in Kentucky where the contract limitations used to be 10 years and nothing that happened in Virginia will be res judicata, because it was not "on the merits." Is that what the Court intended? I suspect not.

In my unpublished case, I was the appellee, having evidently hypnotized the trial court judge. I thought I had made a stylish argument, with lots of authority on each point, but the Supreme Court did not believe it for a second. Justice Hassell said he didn't understand it, that it didn't make any sense. (I should add that every other Virginia lawyer who read the brief at the time said pretty much the same thing.) Here is what I wrote, in part:

As a general rule, on claims solely based on vicarious liability, an employer cannot be liable if its employee is not liable, and the employer is entitled to assert the employee’s defenses. This general rule include the defense of statute of limitations: courts have held that if a claim against an employee is time-barred, then a vicarious claim against the employer is barred as well. Such a rule would be consistent with Virginia law regarding statute of limitations: in Virginia, the statutes of limitations are broadly construed and in other kinds of “derivative” tort claims, the Virginia Supreme Court has held that the derivative claim is untimely if the primary claim is untimely. Plainly, the statute of limitations has expired as to Company’s employee in this case, Company’s Employee, who has never been sued by Mr. Plaintiff. Consequently, because Company’s Employee could not be liable to Mr. Plaintiff and because Mr. Plaintiff’s claim against Company is based solely on the alleged negligence of Company’s Employee, Mr. Plaintiff’s claim against Company is barred as well.

Because of the derivative nature of respondeat superior liability, it is a fundamental prerequisite to the imposition of vicarious liability that the agent or employee must be liable to the third party. The discussion in Federal Land Bank of Baltimore v. Birchfield, 173 Va. 200, 3 S.E.2d 405 (1939) is instructive. In Birchfield, the defendant corporation was sued for defamation based on the acts of its agent.

Defendant corporation . . . is liable, if at all, on the theory of respondeat superior. If the agent who committed the tort would not have been personally liable for the words he uttered as an agent of the corporation, then the corporation for whom the agent at the time was acting is not liable.

173 Va. at 225, 3 S.E.2d at 415. The Birchfield Court approved the language of the United States Supreme Court, that “[i]t would seem on general principles that if the party who actually causes the injury is free from all civil or criminal liability therefor, his employer must also be entitled to a like immunity.” 173 Va. at 226, 3 S.E.2d at 416 (emphasis added).

Because of the derivative nature of vicarious liability, Virginia courts have held that a verdict in favor of the servant exonerates the master when both are sued together. “It is well settled in Virginia that where master and servant are sued together in tort, and the master’s liability, if any, is solely dependent on the servant’s conduct, a verdict for the servant necessarily exonerates the master.” Roughton Pontiac Corp. v. Alston, 236 Va. 152, 156, 372 S.E.2d 147, 149 (1988). By the same reasoning, the principal or employer can generally assert the same defenses available to its agent or employee, even when the employee is not joined as a defendant. “[E]mployers are generally entitled under traditional principles of respondeat superior to assert all defenses available to their employees.” Norton v. United States, 581 F.2d 390, 397 (4th Cir. 1978). Compare Polygram International Publishing, Inc. v. Nevada/TIG, Inc., 855 F.Supp. 1314, 1334 (D.Mass. 1994) (“Under theories of agency and respondeat superior, the defenses of the servant may be asserted by the master. . .”).

In the Restatement of Agency, Second, the authors recognized this rule, offering that a master can have the benefit of all the servant’s defenses, with the exception of some kinds of immunity based on the personal relationships of the servant. Compare RESTATEMENT (2D) AGENCY § 219 & comment c (master can use servant’s defenses); RESTATEMENT (2D) AGENCY § 217 (master can assert servant’s defenses with exception of privileges based on status); Carter v. Carlson, 447 F.2d 358, 367 n. 26 (D.C. Cir. 1971) (“It is generally recognized . . .that the master can assert . . . the servant’s substantive defenses”); Sundance Cruises Corp. v. American Bureau of Shipping, 799 F.Supp. 363, 391 (S.D.N.Y. 1992) (same); see also RESTATEMENT (2D) AGENCY § 180 (undisclosed principal can assert agent’s defenses to contract claims).

In line with the general rule that an employer can assert its employee’s defenses in a case based on vicarious liability, some courts have held that employers or principals are entitled to the benefit of their servants’ or agents’ defense based on statutes of limitations. In the leading case of Ware v. Galveston City Company, 111 U.S. 170 (1884), the United States Supreme Court observed that the limitations defense of an agent would also protect those on whose behalf the agent acted as agent. 111 U.S. at 174 (“But manifestly the statute of limitations that barred the claims against Menard . . . would equally protect those on whose behalf Menard acted as agent”). Citing Ware, the authors of CORPUS JURIS SECUNDUM state the following rule:

An agent may be protected by the statute of limitations in respect of personal liability; and a statute of limitations that bars a claim against an agent equally protects those on whose behalf he acted as agent.

54 C.J.S. Limitations § 15. Likewise, the authors of AMERICAN JURISPRUDENCE cite Ware in stating the rule that “a statute that bars a claim against an agent equally protects those in whose behalf he acted as agent. . . .” 3 AM. JUR. 2d Agency § 339.

This rule has been applied to negligence cases where the liability of the principal or master or employer was based on the doctrine of respondeat superior. Courts have held that where the action against the employee or agent is barred by the statute of limitations, an action against the principal or employer is also barred. See Greco v. University of Delaware, 619 A.2d 900, 903-04 (Del. 1993); Lowery v. Statewide Healthcare Service, Inc., 585 So.2d 778 (Miss. 1991); Hewett v. Kennebec Valley Mental Health Association, 557 A.2d 622, 624 (Me. 1989); Panther Air Boat Corp. v. MacMillan-Buchanan & Kelly Ins. Agency, 520 So.2d 601, 603 (Fla. App. 1987); Wilhelm v. Traynor, 434 So.2d 1011 (Fla. App. 1983); Grondahl v. Bulluck, 318 N.W.2d 240, 244 (Minn. 1982) (dicta); Kambas v. St. Joseph’s Mercy Hospital, 33 Mich. App. 127, 189 N.W.2d 879 (1971), reversed on other grounds, 389 Mich. 249, 205 N.W.2d 431 (1973); Davis v. Eubanks, 167 N.E.2d 386, 390 (Ohio Ct. Com. Pl. 1960); see also Owen v. King, 130 Tex. 614, 111 S.W.2d 695 (1938) (quoting Gibson, supra); Gibson v. Jensen, 48 Utah 244, 158 P. 426, 428 (1916) (“The general rule is that, if a cause of against is barred against the agent of an undisclosed principal, it is also barred against such principal”).

In Greco, plaintiff, a college student, sought recovery from the university for the negligence of the doctor employed in the student health center. Plaintiff conceded that the limitations had run as to any claim against the doctor. 619 A.2d at 902. The Court concluded that “[s]ince Dr. Talbot (the employee) is not liable to Greco on the merits, because Greco’s claims are barred by the medical malpractice statute of limitations, there is no vicarious liability imputed to Dr. Talbot’s employers, the University and the Student Health Care Center.” 619 A.2d at 904. The Court considered separately the plaintiff’s allegations of direct negligence by the University and the Student Health Center and concluded that they, too, were untimely. 619 A.2d at 904-907.

In Hewett, the plaintiff sought recovery from the Association for the negligent acts of a psychologist employed by the Association. The Court held that “the Association’s liability under Count II being vicarious to Dr. Robinson’s liability, the Association had available the same statute of limitations defense that was available to Dr. Robinson.” 557 A.2d at 624 (citing Ware and RESTATEMENT (2D) OF AGENCY § 219 comment c). Moreover, as to other counts where the responsible actors were not named, the Court observed that “since the Association’s liability is necessarily only vicarious to that of its employees,” the other claims were also barred because the malpractice limitations period would apply to those claims as well. 557 A.2d at 624-25.

In Lowery, the Court dealt with the timeliness of claims against a hospital and a nurse. The trial court had ruled that the hospital’s liability was “predicated solely upon the doctrine of respondeat superior” and that therefore the limitations bar to an action against the employee likewise barred a claim against the hospital. 585 So.2d at 779. On appeal, the Mississippi Supreme Court agreed, holding that since the only basis for the claim against Statewide was vicarious liability, and the claim against the nurse was time-barred, therefore the claim against Statewide was also barred. Citing CORPUS JURIS, AMERICAN JURISPRUDENCE, Ware, Wilhelm, and Hewett, the Court observed that “[i]t is generally held that a suit barred by a statute of limitation against an agent will likewise bar the same claim against the principal whose liability is based solely upon the principal and agency relationship, and not some act or conduct of the principal separate and apart from the act or conduct of the agent.” 585 So.2d at 780.

In Wilhelm, the claims were against a doctor and a hospital. The Court held quite simply that because the plaintiff’s claim against the employee doctor were time-barred, the claims against his employer the hospital were also untimely. “Because Orlando General Hospital is only vicariously responsible for the acts of Dr. Taylor, and he has no liability, the hospital is not liable.” 434 So.2d at 1013.

In Panther Air Boat, the claim was against an insurance salesman and his principal, Charter Oak Fire Insurance. The Court concluded the claim against the agent was time-barred. As to the vicarious claim against Charter Oak, the Court held, “we affirm the summary judgment in favor of Charter Oak since it could not be vicariously liable when its agent had been relieved of liability.” 520 So.2d at 603 (citing Wilhelm).

In Grondahl, the claims were against a doctor and a medical clinic. The Court concluded that there was a dispute of fact about whether summary judgment was proper as to the doctor based on the statute of limitations. In remanding the case, the Court observed: “The liability of The Duluth Clinic is predicated on the liability, if any, of Dr. Bulluck. If the jury were to find the claims against Dr. Bulluck to be barred by the statute of limitations, the claims against The Duluth Clinic arising from Dr. Bulluck’s treatment would also be barred.” 318 N.W.2d at 244.

In Kambas, the claim was against a hospital. The Court observed: “the plaintiff contends that the hospital is vicariously liable for the nurses’ malpractice. He does not contend that the hospital is guilty of any negligence of its own. On these facts, the malpractice statute of limitations applies to an action against the hospital.” 33 Mich.App.2d at 132, 189 N.W.2d at 881. Thus, the Kambas court concluded that the employee’s limitations defense barred plaintiff’s claim against the employer.

In Davis, the claim was against a nurse and a hospital. The Court observed: “Plaintiff has alleged that the injection of penicillin by Ruth Eubanks was done under an order of the decedent’s physician. No claim is made that the defendant hospital participated in the slightest in said order. Our opinion is that since the Statute of Limitations is effective as a bar to an action against the employee, the registered nurse, it is also effective as a bar against an action against the employer, the defendant hospital.” 167 N.E.2d at 390.

The decisions cited above make plain the importance of the distinction between direct negligence and vicarious liability claims in deciding whether to apply the employee’s limitations defense to claims against the employer. Thus, in Greco, the court considered the vicarious and nonvicarious claims separately. Greco, 619 A.2d at 904. In Hewett, Lowery, Wilhelm, Panther Air Boat, Grondahl, Kambas, and Davis, the courts emphasized that the employers’ liability was solely vicarious and that there was no claim of direct negligence against those employers. This distinction is in accordance with the general rule offered in the Restatement:

If there is an independent ground for finding the principal liable, judgment can be entered against him and for the agent. Thus, if in an action against master and servant for harm caused by an automobile driven by the servant, there is evidence that the vehicle was defective, and that the defect was a cause of the harm, it is possible to ascribe the entire fault to the principal.

RESTATEMENT (2D) AGENCY § 217 B, comment d. Virginia follows the same general rule. See Roughton Pontiac, 236 Va. at 156, 372 S.E.2d at 149-50 (employer may be liable in spite of verdict in favor of servant where master’s liability is not “derived solely” from the servant’s acts but is based on his own tortious acts or the acts of another employee).

In Mahony v. Becker, 246 Va. 209, 435 S.E.2d 139 (1993), the Supreme Court dealt with the application of the statute of limitations to the vicarious emotional injury claim of parents for a wrong committed against their child. The Court held that the parents’ claim was “derivative” of the daughter’s claim. 246 Va. at 212, 435 S.E.2d at 141. Because the parents’ claim was derivative, the court held that it accrued at the same time as the child’s claim. 246 Va. at 213, 435 S.E.2d at 141.

Similarly, in other decisions involving “derivative” claims, the Virginia Supreme Court has held that “derivative” tort claims were barred when the limitations period had expired on their respective primary claims. Thus, a subrogation claim of a workers’ compensation carrier was barred when the limitations period on the employee’s claim expired. See United States Fidelity Co. v. Blue Diamond Coal Co., 161 Va. 373, 378-79, 170 S.E. 728 (1933). Similarly, the claim of a decedent’s representative for the decedent’s personal injuries was barred when the limitations period had run against the decedent. See Street v. Consumers Mining Corporation, 185 Va. 561, 39 S.E.2d 271 (1946). One might expect Virginia law would apply the same rule to a shareholder’s derivative suit on behalf of a corporation. See 12B FLETCHER’S CYC. CORP. § 5886 (1993) (“if the cause of action belonging to the corporation, and which is sued on, is itself barred by the statute of limitations, the action by the shareholder as the representative of the corporation is also barred”).

Exceptions to this general rule are the result of specific legislation. Thus, for example, the legislature created a statutory right of contribution in VA. CODE § 8.01-34, non-existent at common law. In Gemco-Ware, Inc. v. Rongene Mold and Plastics Corp., 234 Va. 54, 360 S.E.2d 342 (1987) the Supreme Court held that a statutory claim for contribution from a joint tort-feasor under this statute can be timely even though the limitations period has expired on the underlying claim against the party from whom contribution was sought. In that case, the Court held that by statute, the General Assembly had recognized a distinction between “the main action and the derivative claim for contribution.” 234 Va. at 59, 360 S.E.2d at 345. The legislature reemphasized this distinction with the enactment of VA. CODE § 8.01-249(5), which provides explicitly when a cause of action for contribution or indemnification accrues. The Code provisions regarding contribution provide a legislative basis for differentiating between the principal and derivative claims with respect to limitations that does not exist with other kinds of “derivative” claims, such as the kind of claim asserted by the plaintiff in this case.

Mr. Plaintiff argues that the Virginia law regarding joinder of parties has some effect on the statute of limitations. He submits that because he was not required by the Code and the Rules of Court to sue Company’s Employee along with Company, it cannot be true that the expiration of the limitations period against Company’s Employee affects his claim against Company. Under VA. CODE § 8.01-442, if Mr. Plaintiff had won a judgment in one case against Company’s Employee, he could also seek a judgment against Company in a subsequent action. Under VA. CODE § 8.01-35.1, Mr. Plaintiff could have settled with Company’s Employee then brought an action against Company. These are useful modifications of the common law, supported by public policy in favor of avoiding unnecessary litigation while making a claimant whole, but neither the letter nor the logic of these Code sections have any application to the statute of limitations.

The fact that Mr. Plaintiff could have sued Company’s Employee and Company separately does not mean that he can avoid the consequences of never having sued Company’s Employee at all. Likewise, Mr. Plaintiff cannot complain that the limitations period expired as to Company’s Employee while an action against Company was pending. Compare Ward, 177 Va. at 114-15, 125 S.E.2d at 795-96 (employer can assert judgment in favor of employee in separate action obtained while employer’s appeal was pending); Graves, 344 F.2d at 901 (rejecting plaintiff’s argument that judgment in favor of defendant employee obtained while suit was pending against the employer should not be res judicata as to the employer). The policy underlying the statutes of limitations in Virginia law is so strong that the Virginia Supreme Court has observed that any doubt as to the operation of a statute of limitations should be resolved in favor of applying the statute, that the statutes are to be strictly construed, and that exceptions to the statutes are to be construed narrowly. See, e.g., Westminster Investing Corp. v. Lamps Unlimited, Inc., 237 Va. 543, 547, 379 S.E.2d 316, 318 (1989).

Even though the liability of Company may be joint with that of Company’s Employee, it is also derivative of Company’s Employee’ liability. Consistent with the treatment of other derivative claims, and consistent with the policy supporting strict construction of the statutes of limitations, this Court should hold that Mr. Plaintiff’s claims against Company are barred because of the expiration of the limitations period as to Company’s Employee. Mr. Plaintiff had two years to identify and bring suit against Company’s Employee.

No room for federal inmates in the W.D. Va.

In this article from the Roanoke paper, the U.S. Marshal for the Western District of Virginia describes the problem of his office's inability to find places to put inmates in connection with criminal cases pending in the W.D. Va. The state prisons are overcrowded, which leads to overcrowding in the local jails, which means no extra space for federal prisoners.

The article says in part:

"According to the State Compensation Board, Virginia jails were built to hold a total of 18,051 prisoners. As of December, they were holding 28,499. In addition, the number of prisoners the Roanoke marshals service is responsible for has more than doubled in the past 11 years."

Sexual assault necessarily outside the scope of employment in Tennessee

In this Federal Tort Claims Act case based on acts allegedly committed in Tennessee, Magistrate Judge Sargent recommended granting the government's motion for summary judgment, concluding: "Based upon existing Tennessee law regarding the doctrine of respondeat superior, in addition to law from other jurisdictions, I am of the opinion that the Supreme Court of Tennessee would likely determine that sexual assault and/or harassment committed by an employee upon a third party falls outside the scope of employment."

That ruling is in accord with a fair number of FTCA decisions - I never understood why these FTCA decisions don't seem to carry more weight when the employer is someone other than the government and the issue of scope of employment is at issue.

Also, we didn't have quite the same luck litigating the same issue some years ago in the case of Jamison v. Wiley, 14 F.3d 322 (4th Cir. 1994), but we did get the remand reversed, and won the case at trial on the statute of limitations.

On the timeliness of a complaint filed with a motion to proceed in forma pauperis

In Johnson v. University of Virginia Medical Center, Judge Moon of the W.D. Va. held that the plaintiff's action was timely, where he had filed the complaint together with an in forma pauperis motion on the last day of the limitation period, even though the Court did not formally grant the motion until some days later.

Judge Moon also held that the plaintiff had sued the hospital defendant in the wrong name, but granted the plaintiff leave to amend, without addressing the question of whether the misnomer affected the timeliness of the complaint.

She could have eaten the evidence

In a Bivens action called Cooper v. Bonaventura, Chief Judge Jones of the W.D. Va. granted summary judgment based on qualified immunity to the officer who tried to retrieve from the mouth of the plaintiff a mini-cassette tape, after she had said that it had stuff on it she did not want the police to here.

Of course, you've heard of us

Periodically, I tell war stories of the Evergreen litigation, which was MDL 886. You can look up my favorite footnote of all time, in United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998), an opinion that delighted me so much for years I kept a copy in my desk.

Just now, I recalled another story from that case -

At the first big hearing in D.C. after the consolidation, there was a roll call of lawyers for the defendants, and the first one stood up and said, "I'm Paul Dodyk with the Cravath firm."

As I was then with White Elliott & Bundy, someone asked me later if, when it became my turn to speak, I stood up and said, "I'm Steve Minor with the White firm."

I have to laugh at this now, and mean it as no ill reflection on Mr. Dodyk, particularly since he and his colleagues were very generous to me as were all of the lawyers in the case, in ways I have since tried to emulate in my own dealings with other counsel.

How should we select a Chief Justice?

This SCOTUSBlog post addresses the question of how should the Chief Justice of the United States Supreme Court be selected, and the commentary proposes that "once all nine vacancies on the Supreme Court are filled, the members of the Court should select the Chief Justice," for the reason that "the Justices are in the best position to know whether one of their colleagues is collegial and possesses the leadership and administrative skills to serve as an effective Chief Justice." The referenced article can be downloaded here.

Last week's Virginia Lawyers Weekly had a cover story on HB 2089, which would among other things change the way the Chief Justice is selected in Virginia, taking the selection power away the members of the Supreme Court, while at the same time taking a number of statutory responsibilities away from the Chief Justice and giving them to the members of the entire Court. The proponent is Delegate Janis, with whom I might be inclined to agree on many things, with the exception of his extraordinary remarks about judicial selection, and some parts of this bill. There seems to me some inconsistency between empowering the whole Court to decide an increased number of matters while removing their power to select a Chief Justice.

The significance of the bill has more to do with cutting back the powers of the Chief Justice over local judges, it seems to me, than with trying to oust the current Chief Justice, who might well continue as Chief even if HB 2089 passed, since it does not require the senior justice to agree to serve as Chief Justice.

HB 2089 appears again in this week's VLW, which has a story about how Chief Justice Hassell has taken up the issue of how the workload is assigned among the judges of the Circuit Court for the City of Richmond. The article says: "Hassell's intervention with the Richmond judges appears to have played a role in the decision of Del. William R. Janis to introduce House Bill 2089, which moves many of the specific statutory duties of the chief justice to the full court or to the chief circuit court judge." VLW, 1/29/07.

In the earlier VLW article, a spokesman for the Supreme Court offered this provocative comment about HB 2089: "The Supreme Court of Virginia has significant concerns about the impact of this bill upon the administration of justice."

Yoo v. Wu and Hass too

Professor Solum has posts here and here on the views regarding net neutrality of Christopher Yoo, Tim Wu, and Douglas Hass.

Every time I start to get lost in the weeds of the net neutrality debate, I read this again or this.

UPDATE: For some more comments questioning the need for net neutrality, which I have not read, see the links in the comment. (Yes, you can comment here on the SW Virginia law blog, if you look at the posts one at a time.)

On this year's laws against murderers and abortion

The Washington Post reports here that legislation has passed the House of Delegates that would expand the cases for which a convicted murder can receive the death penalty in Virginia. The article also describes legislation that would make it a crime in Virginia to force someone to have an abortion.

I agree with adding "judge killers" to the death penalty list, if there must be such a list

Speaking of which, I just got through reading Limitations by Scott Turow, about an appeals court judge receiving threats. Short and good, I read in a couple of hours.

Mistrial when lawyer loses train of thought

The Daily Press has this AP story about a Virginia trial where the judge declared a mistrial after the 70-something defense lawyer "said he couldn't continue his closing statement because he had lost his train of thought."

Or as we sometimes say, the train has left the station.

On handling PDF files for e-filing

Ernie Svenson has this post on dealing with PDF files for e-filing in the federal courts.

I must confess I am so cheap that I do not own an Acrobat license, I use a program called NitroPDF for most of my PDF tricks - putting them together, taking them apart, adding bookmarks, etc., and sometimes use a program called eCopy to scan documents (to Word of PDF) with OCR - so I can look up, for example, how many times (and where) the word "operations" appears in the lease I am writing about this weekend. eCopy came with the copier, I think. Also, we have a license for a program called Easy Bates, which does the Bates stamping of PDF files better than NitroPDF.

Correction

The other day I wrote:

The Democrat delegate who opposes the reappointment of a general district court judge is now saying the judge was only supposed to get one term. That's a strange thing to be saying. A deal like that would be unenforceable, surely.

In fact, it is a circuit court judge. Maybe I'll get this story straight before the end of the session - so far, my record is 0 for 2.

Stuff that's piled up

The case of the she named He: The Supreme Court ruled that the birth-parents of a young girl from China are entitled to custody, over her adoptive parents. Here is a story from the Shanghai Daily, and the Volunteer Dispatch has this post, speculating that the case could go to the U.S. Supreme Court.

The alleged unethical treatment of dead animals by PETA workers: the Norfolk paper reports here on the ongoing trial in NC of two Virginia PETA workers, who "being tried together on 21 counts of felony animal cruelty, seven counts of littering and three counts of obtaining property by false pretenses." Geez, they wouldn't want me on that jury.

How partial is partial: this post talks about the next great issue for the Supreme Court in the application of the Federal Arbitration Act - "The dispute turns on the meaning of "evident partiality" in 9 USC 10(a)(2): whether that term requires that an undisclosed relationship that the arbitrator had with a party, witness, or counsel (as in Positive Software Solutions) must be beyond a "trivial or insubstantial" prior relationship in order to justify vacating an award (as the majority of the Fifth Circuit en banc held), or whether the "very failure to disclose facts that might create a reasonable impression of the arbitrator's partiality" justifies vacating the award (as the panel opinion had held)." I've got a couple of arbitration cases cooking, one's that about done I think and one that needs to get started.

The Lynchburg Circuit Court sustained a demurrer to the lawsuit challenging the plans of Randolph-Macon Women's College to go co-ed, as the Lynchburg paper reported here. The article says Ed Fuhr from Hunton & Williams represented the college. Wyatt Durrette as counsel for the plaintiffs said that "the judge’s ruling surprised him." No doubt it did.

Posts like this one and articles like this one continue to expand the speculation about the impact of the Fourth Circuit's ruling in the Maryland Walmart employee benefits case. Does the logic of that ruling limit the authority of any state-wide scheme for employers to provide medical insurance? Perhaps so.

Delegate Hargrove proposed a resolution to celebrate Juneteenth, after his controversial remarks about slavery, as reported here. Juneteenth is an interesting idea for a holiday. There was a Rappahannock Juneteenth celebration in 2006.

I'm still wanting to read the Virginia Court of Appeals opinion in the parking with an expired inspection sticker case, described here. Do you reckon the fellow ever moved his car?

The Washington Times is pointing the finger at Michael Powell in the Wren Chapel cross matter, as Powell is on the board of the College of William & Mary. Somehow, the Times attempts to make some comparison between the removal of the cross and the Janet Jackson episode at the Super Bowl, surely a strange connection to try to make.

The Democrat delegate who opposes the reappointment of a general district court judge is now saying the judge was only supposed to get one term. That's a strange thing to be saying. A deal like that would be unenforceable, surely.

"Hogs are not game animals." It says so right here in the Hook, in an article about the Boar man, and "Operating Hog Wild."

Another corner heard from: part of the transportation debate includes the issue of whether the state can make localities raise taxes, according to this article in the Norfolk paper, including commentary from Professor Howard, who says "the state can order cities and counties to impose local taxes against their will."

Del. Janis speaks on the relevance of local bar endorsements

Quoted here in the Daily Progress, Delegate Bill Janis said:

"The notion that the lawyers of the Charlottesville bar can pick who the next judge will be is like saying that the inmates get to pick the next warden."

Now, that's one view of bench-bar relations.

House approves Chad Dotson for general district court judgeship

As Not Larry Sabato reported earlier, the House approved HR 53 , which includes Chad Dotson among those appointed or reappointed for general district court judgeships. Well done, Chad. On Chad's selection, Ken Lammers has commentary here, and says Ron Elkins as Chief Deputy may be the next Commonwealth's attorney. Well done, Ron - another good guy.

At the same time, the House voted in Joe Carico to the 30th Circuit, in approving HR 52. The Senate approved the same list of circuit court appointees and re-appointees, in SB 43. I don't know Judge Carico as well as I know these other guys.

Also, the Senate Finance committee has approved SB 1175, which would add a juvenile and domestic relations district court judge for the Abingdon-Marion-Bristol district, among other things, as well as SB 1174, which will add circuit court judgeships in circuits including here in Southwest Virginia the 27th (Galax, Radford, Bland, Carroll, Floyd, Giles, Grayson, Montgomery, Pulaski, Wythe) and 30th (Norton, Lee, Scott, Wise).

I saw Judge Birg Sergent at the VBA winter meeting, and asked whether decision by the General Assembly to add a judgeship to the 30th circuit on the eve of his retirement means that the legislators have determined that it will take two judgeships to replace him. The facts cannot be read any other way.

Great blogger

Here is a good article on Sabrina Pacifici, the brains of the beSpacific blog, which is always chock full of useful links to key government documents and other items of interest.

On judging the cases of lawyer-legislators

The Norfolk paper opines here that a xxxxx legislator stepped so far over the line with his opposition to a judge before who he appears that it ought to be obvious to everyone that some reform is required on the problem of lawyer-legislators appearing before the judges whose appointments they control.

UPDATE: Oops, the legislator is not a Republican, as previously noted here in error.

On jury reform

Another lively part of the VBA meeting was the discussion on improving the jury system in Virginia, and the liveliest part was discussion about whether it would be a good thing for Virginia to eliminate all exemptions from jury service. Currently, lawyers and judges, among others, are exempt from serving on juries. The proposal, as I understand it, would not eliminate the trial court's discretion to exempt persons on an individual basis for some kind of good cause.

This article from the Roanoke paper details what happened when a member of the Roanoke city council did not show up for jury duty. The circuit court issued him a show cause order. The article said, citing the Commonwealth's attorney:

"Although offenders can face up to 10 days in jail and a fine of $250, Caldwell said it's rare for Roanoke judges to actually find someone in contempt of court. Most often, he said, the person is let go with a warning -- after being admonished by the judge about the important civic responsibility of jury duty."

On intentional infliction of emotional distress

In the last batch of Virginia Supreme Court opinions, in Almy v. Grisham, the Court in a 6-1 decision overruled the order by Judge William Shelton sustaining the demurrer of some of the defendants on the plaintiff's claim of intentional infliction of emotional distress. Judge Kinser was the lone dissenter, and she expressed the view that the majority opinion was inconsistent was prior decisions of the Court about the sufficiency of allegations of the severe emotional distress necessary to state a claim.

This is another opinion where it seems to me impossible to blame the circuit court judge, given the state of the law before him. The case law dealing with intentional infliction cases was mostly on the defendants' side, and the majority's efforts to distinguish the established precedents does not seem likely to make the law any clearer, as they acknowledged when they said: "A primary reason for the tort’s disfavored status is that because the prohibited conduct cannot be defined objectively, clear guidance is lacking, both to those wishing to avoid committing the tort, and to those who must evaluate whether certain alleged conduct satisfies all elements of the tort."

The Hook had this article about the decision.

What can an electric utility do about global warming

An interesting part of this weekend's VBA winter meeting was the presentation by John Warren, Director of the Division of Energy for the Department of Mines, Minerals, and Energy on Virginia's Energy Plan.

Related to this, I was interested to read this article about a decision by the Supreme Court of the State of Washington, to the effect that a taxpayer-owned electric utility there could not use ratepayers' money to pay others to do good deeds as regards global warming.

The other fascinating part of the presentation from the Administrative and Environmental law sections dealt with the ongoing litigation before the State Corporation Commission regarding the private wind turbine project proposed to be located in Highland County. Present were two of the lawyers involved, Dan Summerlin from Woods Rogers who represented some of the citizen opponents and Wiley Mitchell, who represented the Nature Conservancy, and even those two groups have different views about the project.

The Augusta County fence case

In one of last week's opinions, Cline v. Berg, the Supreme Court ruled that the fellow who complained about the big white fence shown in this picture was barred by the doctrine of "unclean hands" from obtaining relief against the fence, since his own acts are what caused the fenced to be erected. The Court in an opinion by Justice Kinser reversed the injunction entered by Augusta County Circuit Judge Thomas Wood. (I like Judge Wood, and I suspect he did the best he could have, who would have thought "unclean hands"?) The picture of the fence comes from this article in the Staunton paper, which discusses the decision.

On the ABA ratings of federal judge nominees

This editorial from the Hartford Courant says that it is unfair that Judge Bryant has no way to confront the people who said whatever bad things were said about her to the people at the ABA who rated her unqualified for the federal judgeship in Connecticut to which she has been renominated by President Bush.

The editorial says in part:

"This is an injustice to Judge Bryant and to anyone who may appear before her. If her colleagues have serious concerns about her competence, they owe it to clients and the rest of the legal fraternity to come forward. Judge Bryant deserves the chance to confront her critics and answer their allegations."

On the Fourth Circuit's opinion in the Maryland benefits case

In 2005, Maryland passed the Fair Share Health Care Fund Act which required that companies with more than 10,000 workers spend at least 8 percent of their payroll for employee health care or make up the difference in an equivalent payment to the state. Walmart was the most obvious target of the Fair Share Act.

Last week, in Retail Industry Leaders v. Fielder, the Fourth Circuit in a split decision upheld the decision by District Judge Motz that the new law was unconstitutional. Judge Niemeyer wrote the opinion, joined by Judge Traxler, with Judge Michael dissenting.

The Baltimore Sun had this article on the decision. The Insurance Journal had this article about the decision.

On ignoring the U.S. Supreme Court

This interesting column from Slate's Dahlia Lithwick asks whether the Texas appeals courts have decided to ignore Supreme Court opinions dealing with death penalty cases.

On a mandatory retirement age for lawyers

In this report, the New York State Bar Association protests against the establishment of mandatory retirement age for lawyers in law firms as bad for lawyers and the public, and quite possibly actionable under the ADEA in light of the opinions from the Seventh Circuit related to the Sidley Austin case.

Odds and ends

The Norfolk paper reports here on Senator Stolle's efforts to get some new judgeships for Chesapeake and Virginia Beach.

The Roanoke paper reports here on a Virginia Supreme Court ruling from last Friday, reinstating a $200,000 jury verdict involving the death of a toddler in a swimming pool.

The Daily Progress reports here on the case of the parents who were nabbed for giving alcohol to minors when the police officer figured out what was going on when he came up their driveway.

The Fredericksburg paper reports here on bar endorsements of two juvenile court judges for circuit court judgeships.

The Culpeper paper reports here on the town's settlement with a contractor, who "will never work here again," as if they'd want to.

This page from WDBJ says that court documents show the former priest accused of embezzling was married and living a double life. (Subsequent articles say the former priest denies that he was married.)

This Daily Progress article profiles the Williams Mullen lawyer who is the honorary Canadian consul in Richmond.

On arguing the Blacksburg sewer case

The Roanoke Times had this piece on the thrill for the lawyers who argued the Blacksburg sewer case before the Virginia Supreme Court last week.

It says in part:

"Win or lose, arguing a case before the state Supreme Court is both exhilarating and nerve-racking for attorneys on both sides.

After a hearing Thursday in Richmond that could reignite debate over public utilities in Blacksburg and set a new precedent for enforcing Virginia annexation agreements, Blacksburg Town Attorney Larry Spencer and his opposing counsel Darrel Tillar Mason were slightly nonplussed.

. . .

For Mason, it was stressful to condense folders full of legal wrangling into a 15-minute oral argument in front of seven sharp legal minds who sometimes pepper attorneys with adversarial questions.

"If you're not nervous, something is wrong with you," Mason said minutes after the hearing.

Attorneys arguing other cases before the court Thursday had to apologize to the justices for various gaffes.

One lawyer presented arguments to the court that he hadn't included in his brief. Justices chastised him for exerting an unfair advantage over his opposing counsel.

Another attorney was so flustered after an eight-block sprint to get to the court on time that he had trouble answering questions from the bench. Chief Justice Leroy Hassell showed mercy, giving the attorney 60 extra seconds to address them.

Still, arguing before the state Supreme Court is a challenge many lawyers relish."

Even in Virginia?

The Virginia Injury Lawyer Blog has this instructive post titled, YES, EVEN IN VIRGINIA -- GOOD SETTLEMENTS OF PERSONAL-INJURY CASES -- A PROVOCATIVE PRIMER.

Federalization of the practice of law?

The ABA Journal for January 2007 had a number of items with what struck me as a recurring theme:

In the letters section, a woman wrote: "I urge those responsible for state bar admission rules to consider amending them to support military spouses attempting to sustain legal careers. Rules should allow spouses of active-duty military members who meet the character and fitness requirements to waive in without sitting for a bar examination . . . ." Of course, the rights of veterans and their families are the subjects of considerable federal legislation, including USERRA.

An article addressed the lawsuit filed by a New York-licensed lawyer who lives in Florida, and wants to provide legal advice on New York law matters from a Florida office without obtaining a Florida license. The article says in part, "some experts wonder if someday [the New York lawyer's] approach may become acceptable, particularly if the issue continues to come under scrutiny from the federal courts," and quotes one fellow as saying, "We could have the federalization of the regulation of lawyers," and cites a Third Circuit case where the appeals court ruled that federal law preempted Pennsylvania law with respect to whether a lawyer admitted to practice in federal court but not in state court could have an office in Pennsylvania. The Court is cited as holding that "Where federal law authorizes an agent to practice before a federal tribunal, the federal law pre-empts a state's licensing requirements to the extent those requirements hinder or obstruct the goals of federal law."

An article about the changes to the Bankruptcy Code discussed the statutory issue of whether Congress intended for attorneys to be considered "debt relief agencies" under 2005 amendments to the Code.

Finally, an article begins with reference to the "pervasive role that administrative hearings play in sorting out disputes arising under federal law."

There are many lawyers who never go to federal court, and some of them send work to those of us who do. The differences between state and federal practice have arguably widened since I became a lawyer, particularly as the federal court practice has changed more rapidly in response to modern technology. Will there someday become separate federal bars, exempt from some state practice rules, somewhat like patent practice and tax practice? It wouldn't surprise me.

Fourth Circuit Blog rediscovered

The public defenders in several circuit courts have excellent blogs dealing with the criminal justice issues from the several circuits.

I would include among these the Fourth Circuit Blog, which I have added (or re-added) to the blog roll.

Another one bites the dust

One of the few points on which I have agreed with Legal Fiction is that it is a shame that it is closing down.

Who are those big law firms representing Guantanamo detainees?

This JURIST post lists Virginia-based Hunton & Williams among the law firms named by a Defense Department official who said in an interview that their clients should make them quit doing it or find other lawyers.

I don't like it when the ABA takes a stand on political matters, but when the big firms get involved in "political" pro bono, they are acting in accordance with their ethical obligations, to their credit, even when they are on the "wrong" side and even when their arguments are losers.

This certainly adds some excitement to our next European vacation

The last stop on our next trip to Europe is at Athens, where this weekend somebody shot a grenade into the U.S. Embassy.

On judgeships

Jeff Schapiro writes this week that Chad Dotson might get a general district court judgeship in the Lee-Scott-Wise-Norton district.

Mr. Schapiro's column implies that Chad's main qualification is that as a Republican politico in the far Southwest he is connected with Delegate Kilgore and Senator Wampler, who decide such things as who becomes a state court judge in this part of the state.

Indeed, most judges are former party regulars, going back to the origins of the United States. The concept of judicial review originated in the case of one such appointee, William Marbury, one of the midnight judges named by the Adams administration as they were on their way out, who filed a petition for writ of mandamus against the new Secretary of State, James Madison, to get him to turn over his commission to some judicial post in the District of Columbia. The new Jefferson administration had no intention of letting Marbury in. The Chief Justice John Marshall, himself a Federalist appointee, famously enhanced the power of the Court while declaring it was powerless to grant Marbury's petition, concluding that the act of Congress authorizing such writs was itself unconstitutional.

The problem of judicial selection is not figuring out how to avoid the selection of lawyers who were politically-active, because many of them are the best and the brightest, but rather how to improve the chances of picking the best and the brightest, and not merely those who were politically-active.

Chad Dotson, separate and apart from his blogging, has a better resume than many - he is a well-educated (U.Va. and Georgetown Law), well-spoken, amply-experienced, and good-humored fellow. I don't know that he is in line for a judgeship, but if he is, that's a good outcome, even if the process by which Virginia judges are selected is not always the best it could be.

I have no doubt that we do better in Virginia, I think, than in surrounding states where the judges are elected, which leads to some degree of demagoguery of complex issues (one fellow in Tennessee declared in his campaign ads that he was "The Truth Machine") plus the ever-present issue of money - how can judges ignore their knowledge of who did and did not contribute to their campaign coffers.

Something that strikes me as odd is the proposal this year from Delegate Kilgore that would allow an exception to the residency requirement for circuit court judges "to any sitting judge who resides within the Commonwealth of Virginia upon property that is located contiguous to his respective circuit." Is there some judge out there who doesn't live in his or her circuit? How strange. One mostly-sensible limitation on whom the legislators can select for local judgeships is that they have only the local lawyers to pick from.

On crossing the street in Virginia

In Maybury v. Morton, Magistrate Judge Urbanski ruled regarding the applicability of Va. Code 46.2-924 to the accident between the plaintiff pedestrian and defendant driver, that subsection B and not subsection A was controlling, as to which party had the right of way.

Subsection A provides:

A. The driver of any vehicle on a highway shall yield the right-of-way to any pedestrian crossing such highway:

1. At any clearly marked crosswalk, whether at mid-block or at the end of any block;

2. At any regular pedestrian crossing included in the prolongation of the lateral boundary lines of the adjacent sidewalk at the end of a block;

3. At any intersection when the driver is approaching on a highway or street where the legal maximum speed does not exceed 35 miles per hour.

Subsection B provides, in relevant part:

B. Notwithstanding the provisions of subsection A of this section, at intersections or crosswalks where the movement of traffic is being regulated by law-enforcement officers or traffic control devices, the driver shall yield according to the direction of the law-enforcement officer or device.

Under the facts of the case, the judge ruled that the crosswalk was controlled by the "traffic control device" even though there was some slight distance between the light and the walk in downtown Wytheville.

Outrage of the day

The Virginia Supreme Court upheld sanctions against the defense lawyer who speculatively pled some affirmative defensives in the case of Ford Motor Company v. Benitez.

Even if the main holding is correct, and I would not have gone along with it, the Court should have let this particular lawyer off the hook, as it frequently has done in the past in cases such as Jordan v. Clay's Rest Home, 253 Va. 185, 483 S.E.2d 203 (1997).

The reason is, whether the judges know it or not, every defense lawyer in Virginia has been writing answers this way, since I've been a lawyer. Doesn't every dog get one bite?

Real estate prices gone up in the old neighborhood

The Hook reports here that the University is getting scalped in its purchases on or about Brandon Avenue. I lived on Brandon Avenue for a couple of years, it was pretty convenient to Cabell Hall, where about 90% of my classes were held, way back when - but not as convenient as it will be when they build that football-field sized terrace over Jefferson Park Avenue.

Seven items that have been sitting here waiting to be blogged

Not that I have time to adequately myself on these items, but here they are, some of them have been noticed by others, whom I would cite if I had the gumption.

This article from StyleWeekly fleshes out the details of how terrible it is that court-appointed lawyers in Virginia are paid so little. If I was in the legislature, I would complain about this issue every day until it gets resolved, there is no more important business for the General Assembly to consider than whether it will afford poor Virginians their right to counsel by paying lawyers adequately to do the work - particularly when this year like every other, the General Assembly members are cooking up dozens of new criminal offenses to inject into the Code.

This article talks about the irony of the efforts by the Hazel family to keep a power line off their property. There is irony, there, but I don't know too much about it, the Hazels are like fictional characters I've only read about in the Washington Post and Virginia Business.

This commentary on zoning law in Virginia, which points out there is case law already in Virginia where the Virginia Supreme Court upheld a denial of rezoning in Chesterfield because of the lack of adequate facilities for the proposed new use. It also points out some remarkable figures on proffers, that is cash to accompany rezonings: "for fiscal 2006, Fairfax County (pop. 1,006,529) collected $8.2 million in cash proffers. Chesterfield County (pop. 288,876) collected $6.8 million. The City of Manassas Park (pop. 11,622) collected $2 million. Loudoun County (pop. 255,518) collected $13.3 million. Prince William County (pop. 348,588) collected $25.2 million."

This update from Martinsville says that Hunton & Williams charged the city over $750,000 to lose the cable TV case. The County Attorney, a good man if ever there was one, is quoted as saying "'It pains me a great deal ... (that) all of this money has been flushed away by the city' with no return on the investment." No doubt.

This article (registration required) from the Winchester paper says that a high school student is seeking a preliminary injunction against the Frederick County schools in connection with his right to wear a t-shirt with some kind of Christian message, and his right to distribute pro-life literature. Do the high schools ever win those t-shirt cases? The article says the plaintiff Andrew Raker has been consulting with some group called the Alliance Defense Fund.

The Hook has this article with more coverage on who will succeed Judge Peatross in Albemarle County. Only in Charlottesville does a judgeship get so much press. The inference that the Hook and others are trying to make is that the politicians are going to pick a Republican party regular, such as the current Commonwealth's attorney, over better-qualified candidates who got better ratings from the local bar association - at least, that's the story they are looking for, whether it ever turns out that way remains to be seen. There are some non-Republicans getting circuit court appointments these days, not too many, but more than zero. (I can name one.)

Finally, from Yahoo, here is a story about an award of punitive damages against State Farm in a case related to damage from Hurricane Katrina. One interesting thing is that the case got to trial so soon, in some places it would take longer.

Is there a shortage of city managers?

The New York Times reports here on what is described as the coming shortage of qualified managers for the nation's cities and towns.

Bristol, Virginia, is looking to replace its City Manager, while the outgoing incumbent is getting quite a package of parting gifts as he heads into retirement - maybe the market demands that city managers get such goodies. I'd say that the fellow in Bristol city government who could write his own ticket about any place in the U.S. is not anyone who ever worked in the City Manager's officer, but rather the head of Bristol Virginia Utilities and perhaps a few of his colleagues.

More on the anti-corporation rights movement

According to this report in the Roanoke paper, the same brainwave that is being tauted as the solution against biosolids is being offered up against the intermodal freight facility - the proposals by the Community Environmental Legal Defense Fund for ordinances targeting corporations.

Well, at least the Democrats will do something about Net Neutrality

Senator Dorgan is bragging on his new proposed Internet Freedom Preservation Act, co-sponsored by Senators Kerry, Boxer, Harkin, Leahy, Clinton, and Obama.

I'd have more confidence in a bill endorsed by Boucher and Goodlatte. I'm not sure that the celebrity politicians in the Senate are particularly reliable on any technical issues, including this one - but I will try to read the bill and see where it fits in.

Not everyone agrees on whether the new Congress is jumping on tech issues: today, I saw one headline that said Congress Off To Slow Start With Tech and another that said 110th US congress wastes no time on Net neutrality.

The latest Blawg Review - from New Orleans

Ray Ward has this latest Blawg Review, with sort of a New Orleans religious theme, which reminds me that I sometimes think when listening to President Bush address legal matters that he is talking about some street in New Orleans called the "Rue La-La." All of the president's nominees to the appeals courts have had their footprints on the Rue La-La.

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