Harbor sentiments

Here are "sail away" views, plus one "ride in on the train" view.

Now, we resume our regular programming.

Panoramas

Views in or from Eze, Monaco, Rome, Positano, Taormina, Mdina, Santorini, and Athens.

Churches

From Aix-en-Provence, Marseilles, a Russian Orthodox church in Nice, Eze, Monaco, Florence, Rome, Amalfi, Taormina, Vallete, Mdina, Oia, Thira, and Athens.

Cats are from Malta, dogs are from Greece

In Malta, the cats seemed to have more lobbying clout with regard to park access. In Santorini, at least one dog was too lazy to eat the pile of cookies by its nose.

Back from Spain, France, Monaco, Italy, Malta, Greece

But, too busy to blog just now.

Back on 4/23

There will be no more blogging for a while.

Here are some places where we'll go between now and then -

Day Port
1 Barcelona, Spain
2 Provence (Marseille), France
3 Monte Carlo, Monaco
4 Florence/Pisa (Livorno), Italy
5 Rome (Civitavecchia), Italy
6 Amalfi/Positano, Italy
7 Messina, Italy
8 Valletta, Malta
9 Cruising The Mediterranean Sea
10 Santorini, Greece
11 Athens (Piraeus), Greece

Obviously, we shouldn't have thrown those coins in the Trevi Fountain last year.

What do lawyers need to know how to do

This study, titled "New Skills, New Learning: legal education and the promise of technology" talks about what technical skills lawyers need for their work.

It begins with this statement: "A large majority of lawyers perceive critical gaps between what they are taught in law schools and the skills they need in the workplace, and appropriate technologies are not being used to help close this gap."

I don't know what law school has to do with it, I went to law school a long time ago.

99% won't do

The American College of Trial Lawyers says here that federal judges need a 100% raise.

Virginia Crime Commission to study effect of illegal immigrants

The Richmond paper reports here and the Norfolk paper reports here that the Virginia Crime Commission will take on the issue of the effects on the criminal justice system of illegal immigrants in Virginia.

Fair and balanced

It says here regarding the faculty of William & Mary: "In the 2005 gubernatorial election, 98.9 percent of campaign donations from College professors went to Democrat Tim Kaine." I guess that left 1.1% for William & Mary law alumnus Jerry Kilgore.

The World Trials Collection

This interesting post describes efforts to create digital versions of old books about trials and trial practice, including the Lincoln assassination, the Lindbergh kidnapping, the Sacco and Vanzetti case, and the record of the Scopes trial.

On selecting the new head of WVU

This article from Inside Higher Ed discusses controversy surrounding the pending selection of the next head man at West Virginia University, as one of the candidates is a political insider but not an experienced academic.

The same debate occurs elsewhere to a lesser or greater degree - should the head of an institution of higher learning be a leader in the academic sense, or rather a leader in getting money and political results for the school.

This wackier article about the situation says: "You know things are getting weird when the chairman of the board at West Virginia University is up in arms at a federal appeals judge who also happens to be a member of the university’s alumni board." The federal appeals judge is Robert King of the Fourth Circuit.

Tell the VSB that LEO 1829 stinks

The Virginia State Bar has extended the time period for comments on LEO 1829.

My take on 1829 is that bright-line rules in this area serve lawyers and the public alike, that any retrenchment on ethics generally is a mistake, and that if this opinion is made inevitable by the language in the Rules then not only should the opinion by scrapped but also the Rules should be changed back to the old standards under the Code.

Indeed, my suspicion is that part of the reason why 1829 has been put out there is to highlight the need to reform the deficiencies of the Rules.

Who's speech was at issue here

Evidently, Maurice of Maurice Barbecue in South Carolina has had his lawsuit against a bunch of South Carolina grocery stores kicked out of court. He claimed that the stores acted illegally when they dropped his products after he put up confederate flags at his restaurants in protest of the hoo-hah over the flag in the South Carolina legislature.

The plaintiff's statement lamented that "the Appeals Court ruling allowed the grocery chains to remove Bessinger's product from their stores 'for any reason they wanted.'"

I never have like that mustard-based sauce myself, but I can't speak for others.

Good man in Nashville

Monday I made my first personal appearance in the United States District Court for the Middle District of Tennessee. My host as local counsel was Samuel L. Jackson, who also clerked for Judge Williams and is a fine fellow and former Southwest Virginia, and so far as I can tell, an excellent lawyer who knows what he's talking about.

His law firm, I was interested to learn, represents most of the school boards in Tennessee, if I understand things correctly.

On the need for municipal broadband in Tennessee

This article talks about Tennessee towns offering broadband internet connection and cable television.

Over across the way, BTES does just that for Bristol, Tennessee.

On Keokee Store No. 1

This press release from March 9 notes 14 new sites in Virginia that been added to the Virginia Landmarks Register.

One of them is Keokee Store No. 1, in Lee County.

An application to the National Park Service to have the Keokee Store No. 1 included in the national registry can be read here.

The Southwest Virginia Museum has this image of a Keokee company store.

UPDATE: Dad wrote: "My first bicycle probably came from there. My dad worked for Stonega Coke & Coal at the time."

On labor unrest in the coalfields

This article titled "Rank-and-File Rebellions in the Coalfields, 1964-80" describes UMWA strikes during the referenced period.

One of the sub-headings is "The 1989 Pittston Strike Brings Victory." As I've written elsewhere, the victory was rather short-lived. The article also applauds the takeover of the Moss 3 plant, about which I've written here.

On the smoking ban

The Bristol paper weighs in that Southwest Virginia legislators should go along with Governor Kaine's maneuver to inject a statewide ban on smoking in restaurants.

I don't have much to say about smokers or non-smokers, but I have no tolerance for the whining and complaining on this issue, which surely represents a massive public health risk in and of itself, particularly to those of us who have to listen to it, the victims of second-hand griping. I would be satisfied if instead of the governor's proposal, a new law was passed that outlawed complaining in public about where smoking is and is not allowed. The complainers would be required to eat take-out and drink their whiskey back at the house, where they could smoke or not smoke and complain as much as they like, with no harm to restaurant employees or other non-gripers.

Will I still be interested by the time this comes about?

BeSpacific links to this article from the Third Branch newsletter, which says in part:

"Some day in the not-too-distant future, locating and reading a brief filed in a federal appellate case will become as easy as finding an appeals court opinion. And electronic appellate briefs will feature hyperlinks to lower court rulings, statutes, regulations, and other cited materials."

Lawsuit filed in W.D. Va. challenging application of Title IX to Virginia's public higher ed schools

A group calling themselves Equity in Athletics, Inc. have filed a constitutional challenge in the federal court in Harrisonburg to the federal government's application of Title IX to the sports programs at James Madison University, the College of William & Mary, Longwood University, Old Dominion University, and Virginia Tech. The case, Docket No. 5:07-cv-00028, is assigned to Judge Conrad. Here is a press release about the case. One of the USAToday blogs had this post.

A young man from our neighborhood went to JMU for cross-country, only to see the program eliminated, as was reported in the NY Times and elsewhere.

Are tax returns protected from discovery by a qualified privilege?

Via this TaxProf blog post, I see this law student article, The Qualified Privilege Against Discovery of Federal Income Tax Returns, which references among other cases the decision by Judge Williams in Terwilliger v. York Int'l Corp., 176 F.R.D. 214 (W.D. Va. 1997), which I argued, and cite from time to time.

On Jason Ray

Read here, here, here, here and here about the life and times of a good guy who died too young.

Digital audio is no substitute for a readable transcript

Matt Conigliaro links here to a Florida decision, in which the author of the concurring opinion says this:

Many trial courts, especially criminal courts, are courts of record. Their proceedings are expected to be available for the public to review after the fact. We do significant damage to the legitimacy of this branch of government when we accept records that do not accurately explain the proceedings that occurred in open court. I am convinced that modern digital methods can eventually produce adequate records to safeguard courts of record; I am less convinced that those methods are currently providing adequate transcripts for appellate review. Hopefully, both the public and the legislature understand that there are real costs associated with any change in technology that deteriorates the quality of the record in courts of record.

Employment law evidence issues

This great post explains the significance of the evidentiary rulings from the Sixth Circuit in Maday v. Public Libraries of Saginaw.

First, the point of employment discrimination cases is the intent of the decisionmakers, and therefore evidence can be admitted of what they were told, not as hearsay offered for the truth of what they told, but to show what they knew as it affects the question of why they acted. The trial judge observed: this evidence is being introduced "to show the reason why the employer took the action it did in accordance with its progressive discipline policy which means something had to happen earlier."

Second, the case deals with the admissibility of statements in medical records. The trial court admitted the record from a social worker's file, which contained this statement: "Claimant is unhappy with her attorney who told her he didn’t want to be used as a tool for her revenge. He wanted claimant to settle out of court, but claimant said they had not discussed it before." The defense claimed that part of the plaintiff's many issues affecting her mood (other than what the employer did) was that she was not getting along with her lawyer. The trial court ruled: "This document suggests there might be some alternate source of her distress and, consequently, its relevance is manifest, and . . . not unfairly prejudicial."

The other issue on the appeal was the unruliness of the remarks and facial expressions of the defense lawyer, of which the trial court said they more likely helped rather than hurt the plaintiff's side: "Bartos’s actions may have flirted with impropriety, but it is likely that her demeanor and tactics negatively influenced her own client’s case as much as they might have Maday’s."

A judge and his dog

This story with the picture is great, about Judge Turk of the W.D. Va. bringing his dachshund Baby Girl to court, and into the courtroom, on Tuesdays.

The dog looks sort of like Jenna, but shorter.

C'mon get it together

SC Appellate Law Blog says here that Senator Graham and the White House cannot agree on a nominee for the Fourth Circuit, that Graham wants District Judge John Floyd for the position but John Floyd ruled against the government in the Padilla case.

Polluted water can flow from Bedford County to the ocean, who knew?

In U.S. v. Cooper, the Fourth Circuit affirmed the conviction of a Bedford County landowner from whose sewage lagoon at a trailer park he owned pollutants flowed into a creek which "a tributary of Sandy Creek, which is in turn a tributary of the Roanoke River. The Roanoke River flows from the foothills of the Appalachian Mountains in Virginia, through North Carolina, and into the Albemarle Sound. There is no dispute that, as a tributary of an interstate water, the small creek into which the lagoon discharges constitutes a water of the United States."

The guy argued on appeal that the United States failed to prove that he knew all of that. The Fourth Circuit ruled that it didn't matter whether he knew it or not.

The defendant's name is D.J. Cooper, which is not to be confused with the mysterious hijacker, D.B. Cooper.

There goes the neighborhood

Virginia Lawyers Weekly now has its own blog.

Well done, Paul and company.

Secret perks at my firm

The rumor is true that we've trying to hire lawyer no. 7, and the occasion has caused me to reflect upon the perquisites of employment in this office which may not be generally known:

1. Frozen food and bread delivery. The Schwan's man and the Bread Lady both deliver here. (I used to buy the cinnamon raisin bread and eat it sort of like a watermelon, since I was not allowed to take any home.) In the interest of fairness, I should say that the frozen food deliveries are not a perk for me personally, since the freezer is in the closet next to my office at the back of the building.

2. In-house sauna (winter only, not counting Mondays after power outages). We have a nice room where the temperature often approaches 85 degrees. I spend most of my time there, since it is my office (and my thermostat).

3. Rock City Jr. From our office, you can see into two different states.

4. Wildlife. Over the years, a series of robins (can it be just one?) have tried to pick a fight with their own reflections in the back door and the side windows. Sometimes, sitting at my desk, I see a bird flying toward me, determined to kick the butt of that nasty bird he sees in my window.

5. Free parking for both Food City Race night and the Rhythm and Roots Reunion. At least twice a year, thousands would like to take my parking space.

The Bristol paper's report on Judge Widener's swearing-in in the summer of 1969

In the summer of 1969, the astronauts landed on the moon, Andrew Miller and Henry Howell were fighting for statewide nominations, Ted Kennedy drove off a bridge on an island, and Emory Widener became a federal judge. On the latter, the Bristol paper reported this:

"In impressive ceremonies punctuated by laughter, H. Emory Widener, Jr., of Bristol yesterday received the oath of office as federal judge for the Western District of Virginia.

And Widener, grinning widely and obviously deeply moved by the event, said presiding over the sprawling district, which runs from Lee County to Winchester and contains half a million residents, is 'a sobering thought. I have no profound statement but I am just as happy as I can be.'

Widener received the oath from Chief Western District Judge Ted Dalton of Radfod. Widener and Dalton be chiefly responsible for presiding over federal court cases in Western Virginia, although retired Senior Judge A.D. Barksdale of Lynchburg can still hear cases of his own choosing.

The ceremonies, preceded by brief remarks by a number of Widener's associate's and friends, took place in the federal building on Main Street here. An estimated 300 persons attended the administering of the oath and a reception in Widener's honor at the Martha Washington Inn.

For Widener, who hears his first cases in Abingdon Monday, it was the culmination of a drive begun in January in his behalf. He fills the vacancy of retired Judge Thomas J. Michie of Charlottesville, who was appointed in 1961 by President Kennedy and who stepped down in 1967 due to illness.

After President Nixon was inaugurated on Jan. 20 the drive to place Widener on the bench began in earnest and was climaxed by his nomination by Nixon and confirmation about two weeks ago on the floor of the Senate.

Widener, after repeating the oath and being helped into the judicial robes, paid tribute to many persons who had assisted him in getting the $42,000 per year lifetime appointment.

'I must thank my close friend, Congressman William Wampler, who worked so hard on my behalf, and all of the local bar associations, both Virginia U.S. Senators Harry Byrd, Jr., and William Spong, Jr.,' he said.

'I also want to thank four women who have worked so hard for me over the years - Miss Judy Beth Entler, Miss Lisa Sevier, Miss Katy Minnick, and my secretary, August Weller,' he said.

'I feel quite inadequate in the face of all the oratory that has preceded my taking the oath. I might say, however, that it is not true that lawyers and judges get together and pick someond for this job but they can get together and keep someone from getting it. I want to personally thank them all for their kindness in my behalf.'

Judge Dalton said that Widener's father, the late H.E. Widener, Sr., was one of the most respected jurists in Southwest Virginia. 'We know that at the hands of this son our people and our district will receive just benefits,' he said.

'We might, however, recommend to Judge Widener four things four things that are essential for a judge to remember. He must have patience, humility, practice equal justice, and should view this honored position as an opportunity of service to others,' he said.

Widener then slowly but distinctly repeated after Dalton the following oath . . . .

Widener is the first federal judge in history to come from Bristol.

Dalton told Widener that he received 'the judgeship of what is the greatest district in the United States and it comes a few hours after man has walked on the moon.'

Widener was visibly moved earlier when Wampler, among those in attendance, said that, besides his parents, the late Mr. Widener had had the most profound influence on him.

Widener was associated with his father in law practice in Bristol until the elder Widener's death and, in recent years, had been a partner with David Frackleton. Upon receiving the judgeship, he disoolved the partnership but it will remain Widener and Frackleton in honor or his father.

Widener, who twice managed the successful campaigns of Wampler, also resigned as Ninth District Republican chairman. The GOP District Committee last night in Abingdon elected Billy Frazier of Scott County to succeed Widener.

'I am delighted to share with you the historic significance of this occasion. I wish for Judge Widener much happiness and good fortune and God's blessings,' Wampler said, his voice betraying emotion.

Others who paid tribute included State Sen. George Warren Jr. of Bristol, visiting Judge John Hayes of middle district of North Carolina, Circuit Judge Aubrey Matthews, and John Dabney Carr of Roanoke representing the American Bar Association. Notes of tribute were acknowledged from Eastern District Judge Robert R. Merhige, who has presided in Abingdon, and Chief Judge Clement Haynsworth Jr. of Greenville, S.C., of the U.S. Fourth Circuit Court of Appeals.

Warren, representing the Washington County and Bristol bar associations and a close personal friend of Widener, said, 'It is appropriate that this host of friends and distinguished guests have assebled here today to share in some degree with him their joy and price in a great personal accomplishment.'

Warren said Widener for 16 years has practiced law and is widely acquainted throughout the area and the state. 'And while his gratitude for the great honor is shared by many friends, it is understandable that this is a particularly proud day for the bar and the people of Bristol,' he said.

Warren said the court was established by Congress in the early 1800's and the first Judge was Isaac C. Pennybaker appointed by President Van Buren in 1839.

He said he was succeeded by John W. Brockenborough of Lexington, named by President James Polk in 1846, and the third judge was Alexander Rives, named in 1871 by President Grant.

Warren said for an interim period following the death of Judge Rives the court was served by Judge Robert W. Hughes of the Eastern District.

He said Judge John Paul was named by President Chester Arthur in 1893 and served until 1901 at which time Judge Henry C. McDowell was appointed by President Theodore Roosevelt.

Judge McDowell served until his death in 1932, according to Warren, and was succeeded by Judge John Paul II appointed by President Hoover. Judge Paul served for almost 30 years until his retirement in 1961 and was a senior retired judge until his death a few years ago."

On wardrobe malfunctions

A few years back, I went to my first lawyer event at the Homestead requiring a tuxedo, and so I waited until I was there to try to figure out how to wear it. One item I couldn't cipher was the relationship between the tips of the collar and the tie - under or over, in front or behind. So, whenever I passed a mirror, I looked to see if something was amiss, and generally, the collar was pointed straight up, in the manner of James K. Polk.



Earlier this month, I got up on the morning of my meeting in downtown Richmond, looked around and found that I had packed the business suit, the black socks and shoes, the necktie, and no shirt. So, I borrowed one from the father-in-law, whose neck is about two inches bigger around and his arms are an inch or two longer. It was sort of the David Byrne/Stop Making Sense look in a shirt. Anyhow, none of my friends at the meeting said mentioned it to me, which I figured was about 25% politeness and 75% prior knowledge of my less than splendid sartorial attainment.

Governor Kaine talking about the real Virginia

Am I the only one to raise my left eyebrow every time I hear Governor Kaine's reference in his Jamestown ad on the radio to "the real Virginia"?

Roanoke Times throws down on thirteenth-century English common law

In this editorial, the Roanoke Times opines that the Virginia General Assembly should abolish the year-and-a-day rule, which means you can't be charged with murder if it takes the victim more than a year and a day to die.

They say: "The practice of medicine has advanced since 1278, when the year-and-a-day rule was established in Gloucester. So, too, has English law evolved: Parliament abolished the rule in 1996."

Great BVU Optinet article

Here is a great article on the success and latest offerings of the BVU Optinet fiber-to-the-home network.

I'm a fan of all things BVU Optinet, including their trademarked logo, for which I filed the application with the USPTO.

On bringing your dog to work

The New York Times has this story on people bringing their dogs to work.

I don't know if it's a trend, but I've never been to Bill Bradshaw's office in Big Stone Gap without seeing something quite like one of these:

On taxation of emotional distress damages

Here is a cornucopia of links regarding the rehearing of the D.C. Circuit's decision in Murphy v. IRS, where a panel held that section 104(a)(2) of the Internal Revenue Code "is unconstitutional under the 16th Amendment as applied to a recovery for a non-physical personal injury unrelated to lost wages or earnings."

You know it's a big tax case when I've read it myself. I've had a few tense arguments with opposing counsel at the end of a hard-fought case when there is a settlement (or worse) and then somebody starts talking about taxes.

Rule of Law conference

If I wasn't going to be out of the country, I'd be sure to attend the Rule of Law conference, sponsored by the University of Richmond School of Law, the Virginia Bar Association Foundation, the American Arbitration Association, the American Inns of Court, the English Inns of Court, Federal Jamestown Commission, the John Marshall American Inn of Court, John Marshall Foundation, The Lewis F. Powell, Jr. American Inn of Court, and the National Center for State Courts, which include presentations by Chief Justice Roberts, Justice Breyer, retired Justice O'Connor, Chief Judge Spencer, Judge Wilkinson, Ken Starr, Erwin Chemerinsky, and that's just the ones I've heard of.

On Judge E.J. Sutherland of Dickenson County

April Cain of the Hillbilly Savants has this interesting post on Judge E.J. Sutherland of Dickenson County.

The latest District Court opinion on mountaintop mining

The anti-mountaintop mining removal people are proud to post this opinion from Judge Chambers of the S.D. W.Va., issued March 23, and ruling against the federal government's issuance of permits for the disposal of fill materials from mountaintop removal into the waters of the United States.

The odds are that this is a bad decision, from the perspective of administrative law. The presumptions are mainly in favor of the agency decision. The judge has ruled, in effect, that the pros at the Army Corps of Engineers bypassed some of the things they were supposed to think about before making their permit decisions, and so he remanded the permits for them to do more. One suspects that in another two years, they'll be back in the same place.

The opinion does contain one cool movie reference at footnote 65 - to Field of Dreams, one of my favorites. The plaintiffs characterized the Corps of Engineers' position on an issue related to new streams as the Field of Dreams theory, "[a]s in '[i]f you build it, [the streams] will come.

Best new immunity in Title 8.01

In the 2007 session, the General Assembly passed HB 3184, the Spaceflight Liability and Immunity Act, which immunizes the providers of suborbital space flight from liability for simple negligence.

Jack Kennedy explains it all in this post.

Fourth Circuit Judicial Conference

This year's program includes this:

"For the Final Session on Saturday morning, we will be pleased to have Chief Justice John G. Roberts, Jr., who will join us for the first time to provide 'Highlights of the 2006 Supreme Court Term' followed by a panel discussion in a Review of the Major Supreme Court Decisions. Professor A.E. Dick Howard will serve as Moderator of the panel that will include Professor Lillian R. Bevier, University of Virginia; Professor Walter E. Dellinger, III, Duke University; Thomas C. Goldstein, Esquire, Akin Gump Strauss Hauer & Feld, and Professor Stephen A. Salzburg, George Washington University."

I like the look of the paperwork for the Judicial Conference, it seems sort of like getting an invitation to come watch The Masters. Even the capitalization in the Program conjures the image of something old and Southern. The papers for the Sixth Circuit Judicial Conference, which is periodically open to all, are in no way similar.

On living happily ever after

I was in Richmond earlier in the week for the VBA Leadership conference and the highlight for me was meeting Jim Guy, the subject of this post.

And, I could tell that he was somewhat uncertain when I told him that I had read his blog, and liked it. His troubles were worse than any I ever had, but his last post from over a year ago ends like this: "They all lived happily ever after."

I'll take a happy ending, any day. That fellow who was married to Julie Whitt is still looking for one.

On going digital in Norfolk Circuit Court

The Virginian-Pilot has this report on the plans of the circuit court clerk there to go paperless with the records of the court.

In a somewhat related story, Jurist reports here on a pilot project to make the audio from federal court proceedings available online.

Lawyer sanctions instead of damages caps?

This story reports that in Tennessee, legislators are looking at bolstering sanctions against lawyers who bring frivolous medical malpractice lawsuits, as an alternative to imposing damages caps on medical malpractice awards.

The Faustian bargain for Exit 14

The Bristol paper notes correctly that it is a mistake for the Commonwealth to make transportation decisions based on "free" money, in connection with the proposed bargain of a new Exit 14 in return for VDOT's approval of access for a new superstore.

The same is true whether it is free money for truck lanes the length of Interstate 81, or an above-ground Metrorail extension to Tyson's Corner, or a new and improved Exit 14 to allow access to another Walmart. The highest priority should not be the maximization of private or federal funding.

Of course, if Exit 14 had been done right in the first place, it would not be an issue now.

The United States is the Saudi Arabia of coal.

So says the author in this interesting article about the state of the coal business.

The article says in part:

"In the 1990s, the Energy Department funded a new kind of coal plant. Instead of pulverizing coal to burn it, engineers turned coal into a gas. Coal gasification wasn't new. Long before Edison opened the Pearl Street station, a rough form of gasified coal - called town gas - was used to light streets in many cities. Cleaner natural gas replaced town gas in the United States in the 1940s and 1950s, although it is still burned in China and elsewhere. But the coal gasification plants pioneered by the Energy Department were unique. By gasifying the coal, engineers discovered it could be cleansed of nearly all pollutants, a major breakthrough for controlling emissions. The process, called IGCC for integrated gasification combined cycle technology, is used commercially today at only four plants in the world, two in the United States: one near Tampa, Fla., and another on the Wabash River near Terre Haute, Ind. They are among the world's cleanest power plants, having eliminated more than 90 percent of nitrogen oxide emissions and 98 percent of sulfur from coal. But they also are significantly more expensive to build than pulverized coal plants, which is why there are only two in the country."

Wikipedia has this explanation of the workings of an Integrated Gasification Combined Cycle power plant. The article suggests that some in Europe but none of the IGCC experiments in the United States have been successful, and concludes: "Given the extreme cost of IGCC, heavy subsidies necessary to facilitate construction, and particularly because carbon capture and storage is so far in the future, it is doubtful that it can gain a foothold in the market."

More navel gazing over publishing the list of gun owners

The Roanoke paper, by publishing then pulling the list of gun permit holders, has surely made at least one mistake, possibly two.

In the first place, they could have written about the accessibility of this information without publishing all the names and addresses - they could have told the story without becoming the story. By publishing all the names, they maximized the public splash in ways that don't strike me as relevant to the goal of exploring FOIA.

In the second place, they quickly caved when the permittees complained about the invasion of their privacy, even though, as the paper now reports in this piece by Laurence Hammack, the privacy issues are largely hypothetical and other newspapers in other states continue to publish this information. The reporters probably smacked their foreheads when they learned of this editorial sell-out.

On Melungeons

This Wikipedia entry lists common surnames associated with Melungeons: "Almost every author on this subject gives a slightly different list of Melungeon-associated surnames, but the British surnames Collins and Gibson appear most frequently (genealogist Pat Elder calls them "core" surnames). Many researchers also include Bowling, Bunch, Denham, Dunaway, Goins, Goodman, Minor, Mise, Moore, Mullins, Rose, Williams, Wise, and several others (though this does not mean that all families with these surnames are Melungeon)."

Speaking of Collinses and Minors, here's my great-grandmother with her second husband, a fellow named Morgan Collins, and one of their Minor great-grandsons in Lee County in April 1965.

Tales of swearings-in past

I'm excited to attend the investiture this afternoon of Judges Carico and Dotson, and it seems as good a time as any to recall tales of swearings-in past.

On the day when Justice Kinser was sworn in at Lee High School in Ben Hur, it was a great day. I rode over from Bristol with Jim Green and Joe Lyle. Afterwards, as the day was fine, I suggested that instead of going straight back to Bristol, we should detour to see my grandmother on the other side of Jonesville, and so we did. We almost missed her, she arrived as we were walking back to the car. You could hear the gravel fly as she mashed the brakes when she realized there were three men in dark suits standing in the road in front of her house. She came on, and oh, she was so glad to see us, and how handsome we were, she said, in our lawyer suits. We began trying to explain to her what we were doing in Lee County that day. I told her we had been to the high school. She said, "oh, were you taking a course?" "No, Grandma, we were there for a ceremony." Jim began telling her what a historic event it was, the elevation of a lawyer from Lee County to the highest court in Virginia.

But Grandma was unimpressed. She replied, as only a grandma could: "Well, now, Steven will be right up there soon."

Some years later, I attended the event for Judge Freeman at the Lincoln Theatre in downtown Marion. Following some good advice from Judge Flannagan, Judge Freeman studied the crowd, to savor the moment. When it came his time to speak, he said essentially this: "I've been looking out at you during the speeches, and I know every one here. And I know that each of you knows at least one story which if declared publicly would have kept me from ever becoming a judge." His words had the power of a hypnotic suggestion - there was a moment of silence as each person searched his or her mind, then everyone laughed.

Of course, Judge Freeman, the accomplished storyteller that he is, exaggerates sometimes.

On getting a haircut

When I got married and we set up housekeeping in town, the nearest place to get a hair cut was up the street, and so I started going there. Sixteen years later, the same woman cuts my hair but she has cut back to working just one day a week. In the meantime, I've moved, and she's moved a couple of times. She's had trouble with carpal tunnel syndrome. Often she has bandages on her wrists. I don't know what she charges. I would pay her more, and sometimes do.

Usually, I get my hair cut about every three months, need it or not, more often would be a waste. The last thing I want is to get someone new to cut my hair, and so I often complain that I cannot manage to coordinate my schedule with hers, but I get no sympathy. The general response is some questioning about why I find it imperative to have someone with reduced feeling in her hands come at my neck with scissors.

For a while when I was a kid in Abingdon, we patronized Flanary's Barber Shop on Main Street. He had a sign that read, "No long hair styles." I don't recall that he used scissors, rather he buzzed everyone equally in a manner as short on length as it was short on "style." He had a drawer full of bubble gum, a sample of which came with the price of a trim.

If I have to switch hair cutters, I hope I can at least find one with bubble gum.

The new model

IM000226
Originally uploaded by swvalaw.

A lounger, just like the old one.

Something new?

My wife ordered one of these and it has arrived in Roanoke.

On leave to amend, stigmatization, and Mooks

In Sciolino v. City of Newport News, the Fourth Circuit in an opinion by Judge Motz reversed Judge Jackson for denying the plaintiff leave to amend his section 1983 claim against the city and its police chief, Chief Mook, based on the murky area of the deprivation of "liberty" in the form of stigmatization by the government. Judge Wilkinson dissents at some length, complaining that the majority opinion admits of the possibility that "a document in a government file drawer can violate a constitutional liberty interest in reputation and future employment."

What struck my imagination, of course, was the name of the Chief, recalling Law and Order's Lennie Briscoe, who once said the answer to question what did the police detective do today was that he had "arrested a couple of mooks." The term "mook" was previously unknown to me. The only Mook I had heard of was the fellow who hit the ball through Bill Buckner's legs in the 1986 World Series, the famous image of which you can buy framed for $199.

Film festival in Southwest Virginia?

This press release says:

"The Top Ten Films in America Festival will be held in the mountains of southwestern Virginia in the Town of Fries and the City of Galax, April 19-22, 2007. The film festival is sponsored by the Town of Fries, The Galax City Department of Tourism, the Fries Recreation Center, The Carroll County Department of Tourism and the Drydock Film Corporation. Venues will include the Fries Theater in Fries and the famous REX Theater in Galax. There will be a separate acting competition during the film festival in which winners will have the opportunity to present their acting talents in front of film producers and talent agents. The film festival will showcase films in the categories of Feature Films, Short Films, and Documentaries with a special category for Foreign Films. As has been the tradition, the Backroads Radio Show will be broadcast from the REX Theatre on Friday night and film festival attendees will be able to sit in on the show which focuses on the best of mountain traditional and Bluegrass music. Film makers may submit directly from the festival web site or through Without A Box online.

Drydock Film Corporation, one of the film festival sponsors is also scheduled to have the Virginia Premiere of MORNING SONG WAY, during the festival on Friday April 20th in Fries and again on Saturday April 21st at the REX Theater in Galax. The film will be coming up from its Florida premiere at the Delray Beach Film Festival March 17th at 5:P.M. MORNING SONG WAY was the first production by the company which has produced two motion pictures in a little over a year both of which were filmed in Virginia and North Carolina and both of which star Virginia actors. MORNING SONG WAY with a largely Native American cast is the story of a little girl who witnesses a murder and is hidden up in the mountains of Virginia with her great uncle, a Native American Medicine Man. It is a very powerful film about the topic of cultural loss. MORNING SONG WAY has already been in film festivals in Los Angeles and New York and has won eleven awards so far including Best Dramatic Film at the Native American Film Festival in Columbia, South Carolina and four honorable mentions at the International Cherokee Film Festival sponsored by the Cherokee Nation of Oklahoma. It is mentioned in the March/April issue of NATIVE PEOPLES magazine, one of the largest Native American magazines in North America, Virginia actress Jennifer Redbird is from the area around Fries where most of the picture was filmed and Glenda Bean lives in the Brush Creek Community right on Brush Creek. Both of them star in the film. Bean is a Catawba/Cherokee Indian and Redbird is of white, Hispanic, and Ani-Stohini/Unami descent. Roanoke native Brian Hall also has a strong supporting role in the film. Although the movie will not be eligible for any awards at the festival since Drydock is one of the festival sponsors, it is hoped that the Premiere will help to promote the festival and help to bring celebrities in. Virginia actors Brian Hall and Chris Bookless also have a supporting role in the film. The movie also stars famous Native American Blues guitarist Elvus Kishketon, Jr., and Seminole/Creek Actor Jeff Anderson, both of Oklahoma and includes soundtrack music by Joseph “Z”, and Jerry Eaglefeather Monroe."

Another film, by Drydock, SPIES and MOLASSES, which completes filming this month also stars Glenda Bean and Brian Hall. It is a romantic comedy, spy, martial arts film and also stars Chippewa(Ojibway) Indians Brooke Hidde, and Dawn St. Marie. Atlanta celebrity and martial artist Jessica Vines also stars. The majority of the Drydock family of actors from both films will be in attendance at the festival along with personal friends of film Director Charles Howard Thomas and invited celebrities and guests.

There will be a red carpet in front of the theaters for all films which will premiere during the film festival and a chance for the press to shoot celebrities. After each premiere, there will also be a chance for festival goers to question the stars after the showing of the films."

Speaking of Fries, here's another Crooked Road music story, from Cox News Service.

I once asked the correct pronunciation of the name of the Town of Fries, and was told that it's Fries like French Fries in the summer and Freeze in the winter.

On Wise County lawyer Kenneth Asbury

The Bristol paper reports here on the life and times of Kenneth Asbury, a Wise County lawyer who was instrumental in the founding of what became the University of Virginia - College at Wise.

The draft LEO that would allow the law firms of legislators to lobby

Here is the proposed LEO 1829, which strikes me as an abomination. If that's what the Rules allow, then the Rules should be changed.

There's something going on that I don't quite understand. In an era when judges and lawyers are viewed with less respect and more contempt, the Model Code for lawyers (adopted in Virginia not that long ago) and proposals this year and a couple of years ago for the Model Code for judges (as described here) eliminate the avoidance of "the appearance of impropriety" as an ethical requirement. In practice, that language however ambiguous it may sound made it easy for lawyers and judges to do the right thing - when in doubt, get out. The Conference of Chief Justices opposed the ABA proposal to take this provision out of the Model Code for judges.

The New York Times had this to say last month:

"At a moment when judicial independence is under heightened political attack, the nation’s legal establishment should be doing everything it can to shore up public trust. Instead, the special commission charged with recommending revisions to the Model Code of Judicial Conduct of the American Bar Association has been flip-flopping around on some of the most important aspects of the code, which the states use to set standards for their courts.

For decades, the code's overarching charge to judges has been to avoid not only actual impropriety, but also the appearance of impropriety. Recently, however, quietly adopted changes to the commission's 'final' report demoted this gold standard of judicial conduct from an enforceable rule to a mere aspirational guideline.

When the misguided switch came to light, the panel reversed field again yesterday and went back to the previous formulation. But that does not excuse the fact that the panel was following internal politics, not sound legal principle. The change might have eluded public attention if Robert Tembeckjian, the administrator of the New York State Commission on Judicial Conduct, had not protested and Adam Liptak had not reported on the matter in The Times this week."

Saturday night stuff

The Roanoke paper had this account of the life and times of Thomas Mason, who as a lawyer served as U.S. Attorney for the Western District of Virginia and nearly became a federal judge, and who as an actor had a part in "Gods and Generals" but specialized in playing the role of Elwood Dowd in "Harvey." The article quotes former Del. Chip Woodrum as saying: "He was Elwood P. Dowd." The article also notes that Mason served in the Navy with John F. Kennedy. I read recently that at the end of the Johnson administration, the White House did not fill a vacancy on the Western District of Virginia when the Commonwealth's U.S. Senators could not agree as between a Virginia Supreme Court justice and Mason as the best choice for the job - and so President Nixon got to fill the position, with Emory Widener, in 1969.

Regarding infallible technology, these items: first, the Richmond paper has this article questioning whose DNA should be in the state's DNA database. Yours? Mine? Second, the Richmond paper reported here that someone spoofed an e-mail to make it look as though it came from the head of the Virginia Information Technologies Agency. Finally, it appears that Virginia's new utility law could bring new nuclear power plants to Virginia, according to this report in the Daily Press.

Finally, I started reading this piece in the Bluefield paper because it includes a segment on the need for an additional judge in Mercer County, which is just over the line, but the part that intrigued me even more was this:

" At least 10,000 years ago, a bison-sized, giant ground sloth with large banana-shaped claws inhabited the West Virginia mountains, according to a report from Delegate Mike Burdiss, D-Wyoming (District 22 including a portion of Mercer). Because of the history connected to the sloth and its claws, the lawmaker has sponsored House Concurrent Resolution 2, which would establish the Megalonyx Jeffersonii as West Virginia’s state fossil.

Burdiss said he has taken this action to bring about a better understanding of American History and encourage the study of fossils, which provide a tangible connection to our past.

Burdiss has this historical story to tell: In the 1790s, President Thomas Jefferson, knowing much of the world was yet to be discovered, commissioned a group of explorers to look for the animal during an expedition as he believed that the sloths were not extinct.

The first trace of the massive creature was found in Organ Cave in modern-day Monroe County that same decade. When President Jefferson saw the fossil bones, which were recovered from the cave, he proclaimed the claws were so large that it must have belonged to a great cat or lion.

Thus, the historic fossils received its name, Megalonyx Jeffersonii, meaning Jefferson’s Giant Claw."

Lawyer fined $2,500 for calling witnesses liars in violation of trial judge's order

Chief Judge Jones of the W.D. Va. in In re Katz found a criminal defense lawyer guilty of criminal contempt and imposed a fine of $2,500, where he concluded that the lawyer had willfully violated the order by Judge Moon during a trial in Charlottesville that he stop calling the government's witnesses "liars."

The violation came at the end of a segment in the lawyer's argument when he compared himself to Toto in the Wizard of Oz, exposing "that lying piece of crap behind the curtain," then concluded his argument by shouting "no good liars." Previously, Judge Moon had instructed the lawyer not to call the witnesses liars.

Among other things, Chief Judge Jones noted the following:

The issue in this case is not whether it is proper for an attorney to describe a witness as a being a liar. Court opinions are not uniform on this question; it is more likely to be held improper when the context shows that it is used as an expression of personal opinion by the attorney as to a witnesses' credibility. See Moore v. United States, 934 F. Supp. 724, 728-29 (E.D. Va. 1996); Craig Lee Montz, Why Lawyers Continue to Cross the Line in Closing Argument: An Examination of Federal and State Cases, 28 Ohio N.U.L. Rev. 67, 116-20 (2001). Even when not coupled with counsel's personal belief, however, the word has "potentially emotive effects" and "if used excessively and intemperately, [may] amount to improper argument." Moore, 934 F. Supp. at 728, 729. Under the facts here, Judge Moon was clearly justified in directing Katz to stop using the word in his description of the government's witnesses.

In a footnote, the Court added:

It is a long-standing rule of professional ethics that an attorney must not state a personal opinion on the credibility of any witness. See, e.g., Am. Bar Ass'n, Standards for Criminal Justice, Prosecution Function and Defense Function Standard 4-7.7(b) (3d ed. 1993) ("Defense counsel should not express a personal belief or opinion in his or her client's innocence or personal belief or opinion in the truth or falsity of any testimony or evidence."); Va. Code of Professional Responsibility, DR 7-105C(4) ("In appearing in his professional capacity before a tribunal, a lawyer shall not [a]ssert his personal opinion as to the justness of a cause, as to the credibility of a witness, . . . or as to the guilt or innocence of an accused."); Md. Lawyer's Rules of Professional Conduct, Rule 3.4(e) ("A lawyer shall not, in trial, . . . assert personal knowledge or facts in issue except when testifying as a witness, or state a personal opinion as to the . . . credibility of a witness . . . or the guilt or innocence of an accused.").

The swearings-in of Judges Dotson and Carico

In this week's mail came the notice for the investiture of new Judges Joe Carico and Chad Dotson, to be held at the Slemp Student Center on the grounds of the University of Virginia, College at Wise, on Thursday, March 15, at 4:00.

Come one, come all.

On judgeships

I see that Senator Webb has written to the bar associations for input on the positions of Judge Widener and former Judge Luttig on the Fourth Circuit.

Also, I've heard more about how Del. Crockett-Stark would not go along with Senate Wampler's candidate for the 29th Circuit judgeship. I guess so long as she gets a say, and the only slice of the circuit that she represents is in Tazewell County, she will look to name Republican lawyers from Tazewell County as judges. I don't know who those are, other than Judge Hurley, and that fellow who ran for delegate against Bowling.

Any how, since the scheduled effective date for Judge Williams is December 31, 2007, that's too close to the next session of the General Assembly to allow the Governor to make an interim appointment.

Interesting interview with Justice Thomas about his college experience at Holy Cross

Businessweek has this interesting story with this very provocative interview with Associate Justice Clarence Thomas, about what it was like for him and others to attend the College of the Holy Cross.

Worth reading.

Boucher's national gun rights reciprocity bill

This post at the Huffington Blog describes the "National Right-to-Carry Reciprocity Act of 2007, would basically let people who can carry a concealed weapon in one state, carry that same weapon in any other state, unless it's specifically banned," sponsored by Rick Boucher and Cliff Stearns.

The post describes a Richmond Sunlight-like site for looking at the United States Congress, called OpenCongress.org.

The Huffington post claims that the NRA is Congressman Boucher's No. 8 largest donor. Even so, I'm willing to wager that you'll never see a news story about Boucher shooting a lawyer while duck hunting.