From the Suffolk paper:
Esteemed lawyer, civil servant, dies at 95
By Ashley McKnight-Taylor
Monday, July 2, 2007 10:44 PM CDT
Suffolk can claim a lot of notable people, those whose contributions made a real difference in their chosen professions. Many of them, sadly, have passed on.
Last Friday, Herman T. Benn, 95, joined them.
"He will be missed because he was very supportive of the community," said Jean Copeland, secretary of the Virginia E. Crocker Alumni Chapter of Virginia Union University. "He was just a community-minded person."
Benn earned a Bachelor of Arts degree in education and philosophy from Virginia Union University and remained supportive of his alma mater throughout his life. After graduation, he went on to receive a law degree from Robert H. Terrell Law School of Washington, D.C. It was this choice - to become a lawyer, fighting for civil rights and fairness for all - that would bring Benn distinction.
In 1962, he won a case before the United States Supreme Court that determined that segregating people in courtrooms based on race was unconstitutional, which set precedents for courts everywhere. Benn was co-counsel for Johnson v. Commonwealth of Virginia, a case where college student Ford T. Johnson was charged with a traffic violation. In the courtroom, he sat in the section reserved for whites and refused to move when ordered. He was charged and convicted with contempt of court.
The Virginia Supreme Court of Appeals refused to hear the writ, so the case was appealed to the United States Supreme Court. The Supreme Court reversed the conviction, stating "state-compelled segregation in a court of justice is a manifest violation of the State's duty to deny no one the equal protection of its laws."
It was a victory for many blacks across the country, but those who knew him best remember Benn for all of the little ways he touched their lives, lent his helping hand.
"I can't tell you how valuable he was to us," said Charles Christian, former president of the Nansemond-Suffolk branch of the NAACP.
Benn was chairman of the Legal Redress Committee of that organization. He was thorough in gathering information on the cases that came before him, and was sure to suggest where people could find help for their problems if the NAACP was not the appropriate venue, Christian said.
Suffolk City Councilman Leroy Bennett, who has known Benn's family for years, remembered him as a gentle and kind, but firm and professional, man. His goal was to make the world more fair and equitable for everyone.
"He was very strong about city government ... he pushed others to do the right thing," Bennett said.
Benn made his contributions to government, serving as assistant city attorney in Richmond (the first black to do so there) and later as assistant commonwealth attorney for Suffolk. In 1968, he was appointed to the position of United States Administrative Law Judge and served in that position in both the U. S. Department of Health and Welfare and the Department of Labor.
Before that he served his country as a non-commissioned officer in the Army Reserves during World War II.
Benn died Friday in Bon Secours Maryview Nursing Care Center. The Southampton County native was one of eight children born to Mack Benn Sr. and Mamie Scott Benn.
He is survived by his wife, Marian Waller Benn; two sisters, Dorothy B. Armistead and Bernice B. Maloney, both of Suffolk; three sisters-in-law, Bernice Fletcher of Baltimore, Md., Gladys Pegeas of Richmond, and Elaine B. Benn of Sun City West, Ariz.; and several nieces, nephews and cousins.
A memorial service will be held today at 11 a.m. at Saint Paul's Episcopal Church in Suffolk by Father Joseph Green Jr.
Among his many accomplishments, Benn was the first black member of the Virginia State Bar Association, of which he was a retired member. He also was a retired member of the American Bar Association and the Suffolk Bar Association, as well as a life member of the Alpha Phi Alpha Fraternity and St. Mark's Episcopal Church.
"He was an outstanding person, and in his quiet way, he just did so much for the city," Christian said.
And also read this story from 1997:
" Herman Benn's life is filled with firsts.
In 1958, he was the first African-American member of the state Bar Association . . .
In 1967, he was Richmond's first black assistant city attorney . . .
In 1963, he was the first lawyer to win a legal fight that made it unconstitutional for blacks and whites to be separated in the courtroom . . .
The list goes on.
In 1971, Benn marked a personal first.
He so impressed Marian Waller, a widow and a former elementary school teacher, with his patience and kindness that she agreed to marry him. Later, he would persuade her to study law. Marian passed the bar at 53.
``I thought he was a nice person,'' she recalled of their first encounter. ``. . . It didn't take him long to persuade me to become a lawyer.''
Now, Herman - after 45 years of service - and Marian, who has practiced law for 10, are taking down the Benn & Benn shingle.
They are attending their retirement party today at the Holiday Inn in Suffolk - the town where they've spent the past 23 years of their 26-year marriage.
Looking back, Herman, 85, said he was an unlikely source for breaking racial barriers.
Growing up in the early 1900s, he accepted racial discrimination as a way of life and never had any inclination to change things.
As a child, he simply grew accustomed to the white children in his neighborhood spitting at him out of the school bus window. Blacks didn't ride the bus. So he walked four miles to school.
Herman said he never thought about the separate water fountains or using the back door when he entered restaurants - and much later, while in the Air Force - being forced to work in a separate unit.
Becoming a lawyer to fight racial frustrations was not an ambition until, at 28, he decided not to re-enlist.
``I had experienced so much discrimination, I felt like maybe I could take some actions to correct the situation,'' he said. ``I noticed that black attorneys had won many discrimination cases, and they had come to be recognized as being able to do anything that white attorneys could do.''
Herman moved to Washington and worked as a postal clerk while attending law school. He later graduated from Robert H. Terrell Law School - ``named after the first black judge to sit on the bench in Washington.''
After nearly 50 years, law still excites him.
Of all the cases he's handled, he cherishes most a discrimination suit.
``It was citation number 373 U.S. 61 in 1963,'' he recalled.
He stumbled on the case after he graduated from law school and moved to Richmond. Ford Johnson, the son of a dentist, asked Benn to represent him after he was found in contempt of court for sitting on the white side of traffic court.
When Johnson was asked, he refused to move to the other side.
``Said he was comfortable where he was,'' Herman recalled.
The judge asked him to approach the bench and reminded Johnson that he must sit on the side for blacks. Johnson didn't budge. He was thrown in jail and fined $10.
Herman appealed the case all the way to the Supreme Court and won. It set a new precedent for courts everywhere.
Herman first retired in 1974. He'd been in and out of private practice in Richmond. When he wasn't running his own office, he was a city attorney there and an administrative law judge for the federal government.
Herman, born in Surry, wanted to move back to where he spent much of his childhood. Marian hated Northern Virginia's congestion.
Although retired, Herman wasn't ready to quit law.
So he opened his own practice in Suffolk. In 1976, he became the first black assistant commonwealth's attorney for the city and returned to private practice in 1981.
Marian was his secretary.
``Things were pretty bad,'' Marian, 63, recalled. ``At first, it was difficult because he would tell me to do things, and I would take it personally.''
Marian eventually decided she'd go back to school to be recertified to teach. But Herman wanted her to become a lawyer.
She studied under him for three years. Her third try at the bar exam was the charm.
``We didn't do anything special,'' she said. ``The first time I took the test, I found out how much I didn't know. It was quite an experience.''
The Benns listen intently to each other.
``Do you want to say segregation or discrimination?'' asked Marian.
``Oh, discrimination,'' he said, glancing her way.
Suffolk Commonwealth Attorney C. Phillips Ferguson said he'd give anything to know their secret for youthfulness.
``He looks the same now as he did when I hired him years ago,'' Ferguson said.
``Herman did an outstanding job, and he and his wife have done well in their private practice. I don't know anyone who doesn't like him. He's a nice guy, just a good person.''
The Benns have been in the same office since Marian started practicing. Their downtown office on West Washington is about a 20-minute drive from their home in Northern Suffolk.
Marian no longer makes the commute.
``I stopped taking cases really early,'' she said. ``This is the first day I've been in the office this year.''
His office is almost empty - except for a stack of files and a computer with an Alpha Phi Alpha mouse pad, symbolizing his love for his fraternity.
``The attorney who is in our office now is an Alpha,'' he said, smiling.
Clarence H. Brooks is taking over the practice.
Herman specialized in adult criminal and real estate cases.
Marian handled domestic, social security, worker's compensation and personal injury cases.
Helivi Holland, an assistant commonwealth's attorney in Portsmouth, said the Benns will truly be missed.
The couple gave her a job right out of law school, made space for her in their office and let her use their secretary at no charge.
``A lot of people talk about Mr. Benn, but Mrs. Benn has done very well,'' Holland, 31, said. ``Suffolk is going to be missing two very knowledgeable attorneys.''
The Benns say they will have plenty to do, and their work will be carried on.
``There are a lot of lawyers around here,'' Herman said.
``Yeah,'' continued Marian. ``They'll find somebody else. They forget very easily.''"
Thursday, July 05, 2007
Wednesday, July 04, 2007
Another great 4th of July at Monticello
One reason why it is great to be in the W.D. Va., is that Monticello is in our district, and there Chief Judge Jones can be seen swearing in this year's group of new citizens, by way of this extraordinary and delightful post from Rick Sincere.
Also there was Sam Waterston, and former Virginia Supreme Court justice John Charles Thomas.
Also there was Sam Waterston, and former Virginia Supreme Court justice John Charles Thomas.
Tuesday, July 03, 2007
On law schools and the bar exam
In this widely-cited article from the Norfolk paper about the "real" face of the law school at Regent, there is this quote:
"At that hearing, U.S. Rep. Steve Cohen, D-Tenn., asked [Monica] Goodling: "Are you aware of the fact that in your graduating class, 50 to 60 percent of the students failed the bar the first time?"
"I know it wasn't good," said Goodling, who originally claimed Fifth Amendment protection against self-incrimination in refusing to testify."
The article includes this chart comparing Virginia law schools:
A committee of the ABA, in the exercise of its much-maligned role as the overseer of accreditation for the nation's law schools, has propounded a new scheme to nail fledgling law schools with low bar passage rates. The proposal can be found here, with a cover letter signed by Roanoke lawyer Bill Rakes, the committee chairman. The gist is if your graduates pass the bar at a rate of ten points less than average, then you can get the boot.
I'd like to see a chart on which law schools don't meet the new standard.
"At that hearing, U.S. Rep. Steve Cohen, D-Tenn., asked [Monica] Goodling: "Are you aware of the fact that in your graduating class, 50 to 60 percent of the students failed the bar the first time?"
"I know it wasn't good," said Goodling, who originally claimed Fifth Amendment protection against self-incrimination in refusing to testify."
The article includes this chart comparing Virginia law schools:
A committee of the ABA, in the exercise of its much-maligned role as the overseer of accreditation for the nation's law schools, has propounded a new scheme to nail fledgling law schools with low bar passage rates. The proposal can be found here, with a cover letter signed by Roanoke lawyer Bill Rakes, the committee chairman. The gist is if your graduates pass the bar at a rate of ten points less than average, then you can get the boot.
I'd like to see a chart on which law schools don't meet the new standard.
This sounds familiar
The Peninsula Virginia law blog posts here that the once (and future) registrar of voters in Williamsburg has hired Jerry Kilgore to sue over his being put on leave and replaced by the electoral board there.
Those registrars, starting with Kilgore's mother, have mostly won their lawsuits against electoral boards.
Those registrars, starting with Kilgore's mother, have mostly won their lawsuits against electoral boards.
Steve M. to get nominated to Fourth Circuit
SC Appellate Law Blog says here that the White House will nominate Steve Matthews to the Fourth Circuit for the vacancy left by Senior Judge Wilkins, citing this story from The State.
Interesting e-discovery case from W.D. N.C.
Brian Peterson reports here on the spoliation issue in an e-discovery dispute in a case from right here within the Fourth Circuit.
My observation of e-discovery to date is that its main uses are intimidation through cost and embarrassment. E-mails are often useful, whole hard drives are rarely so.
So, I read this in an e-mail flyer for somebody's seminar:
"Many attorneys harbor the false belief that they can demand the production or mirroring of an opponent's hard drive. Federal Rule of Civil Procedure 34(a) does not create a direct route to a party's Electronically Stored Information system. Copying a hard drive is allowed only on a finding that the opponent's document production has been inadequate and that a search of the opponent's computer could recover deleted relevant materials. Diepenhorst v. City of Battle Creek, Slip Copy, 2006 WL 1851243.
One Court refused to allow mirroring of a hard drive on mere suspicion that the opponent may be withholding discoverable information. Another Court allowed for the mirroring of a computer hard drive upon a finding of evidence that copies of emails were altered to downplay or conceal the relationship between plaintiff and a third party. Advante International Corp., et al., v. Mintel Learning Technology, et. al., 2006 WL 3371576 (N.D.Cal)."
My observation of e-discovery to date is that its main uses are intimidation through cost and embarrassment. E-mails are often useful, whole hard drives are rarely so.
So, I read this in an e-mail flyer for somebody's seminar:
"Many attorneys harbor the false belief that they can demand the production or mirroring of an opponent's hard drive. Federal Rule of Civil Procedure 34(a) does not create a direct route to a party's Electronically Stored Information system. Copying a hard drive is allowed only on a finding that the opponent's document production has been inadequate and that a search of the opponent's computer could recover deleted relevant materials. Diepenhorst v. City of Battle Creek, Slip Copy, 2006 WL 1851243.
One Court refused to allow mirroring of a hard drive on mere suspicion that the opponent may be withholding discoverable information. Another Court allowed for the mirroring of a computer hard drive upon a finding of evidence that copies of emails were altered to downplay or conceal the relationship between plaintiff and a third party. Advante International Corp., et al., v. Mintel Learning Technology, et. al., 2006 WL 3371576 (N.D.Cal)."
On Chief Justice Roberts at the judicial conference
This post comments on Chief Justice Roberts' remarks at the Fourth Circuit judicial conference at the Greenbrier.
It says in part:
The late William Rehnquist would always offer to the 4th Circuit a quick summary of the lesser-known decisions of the previous term, which he described, quoting a Thomas Gray poem, as flowers "born to blush unseen." But Roberts said that tradition, along with Rehnquist's gold-striped judicial robe, are "very much his own and should not be imitated."
Instead, Roberts quoted Robert Frost poems titled "The Tuft of Flowers" and "Mending Wall" to draw some conclusions about judicial fellowship. "I'm not an expert on Frost," said Roberts, "but an important part of fellowship is ongoing inquiry, examination and debate."
It says in part:
The late William Rehnquist would always offer to the 4th Circuit a quick summary of the lesser-known decisions of the previous term, which he described, quoting a Thomas Gray poem, as flowers "born to blush unseen." But Roberts said that tradition, along with Rehnquist's gold-striped judicial robe, are "very much his own and should not be imitated."
Instead, Roberts quoted Robert Frost poems titled "The Tuft of Flowers" and "Mending Wall" to draw some conclusions about judicial fellowship. "I'm not an expert on Frost," said Roberts, "but an important part of fellowship is ongoing inquiry, examination and debate."
That cool Seventh Circuit Wiki
Today, I was thinking about some appellate procedure questions, and turned for the answers to the Practitioners' Handbook from the Seventh Circuit - not that my case is in the Seventh Circuit, it is pending in the Fourth Circuit, which has no cool wiki handbook.
Pirated from the Rose Hill library event
Here is a picture I stole of my sister Joan with Ron Flanary at the kickoff event for the public access broadband project in Rose Hill.
Monday, July 02, 2007
Those still vacant seats on the Fourth Circuit
Larry O'Dell of the AP had this interesting update on the vacancies on the Fourth Circuit, quoting among others Virginia appellate guru Steve Emmert.
A little while back, someone at Power Line offered this discouraged post, titled "The Fourth Circuit - Going, Going, Gone?"
The story remains the same - the Bush administration has frittered away their chances to load the circuit bench with their choices, and now they will be lucky to get anyone confirmed. Senator Webb's creditable willingness to cooperate with Senator Warner in putting together a joint list of names for the Fourth Circuit adds to intensity to the question, why doesn't the White House act?
A little while back, someone at Power Line offered this discouraged post, titled "The Fourth Circuit - Going, Going, Gone?"
The story remains the same - the Bush administration has frittered away their chances to load the circuit bench with their choices, and now they will be lucky to get anyone confirmed. Senator Webb's creditable willingness to cooperate with Senator Warner in putting together a joint list of names for the Fourth Circuit adds to intensity to the question, why doesn't the White House act?
At least we're not in Brooklyn
In this Outside Counsel post is told the tale of a call from the clerk's office, in which the clerk says the latest filed motion is no good because the referenced client is not a party, to which the lawyer responds, that's no party, that's the name of the building where I work.
That story makes me think of the time we had some printed forms bearing the name of a circuit court clerk, "Russell V. Presley," that prompted one of the staff construed to mean that we were involved in the lawsuit of Russell versus Presley.
That story makes me think of the time we had some printed forms bearing the name of a circuit court clerk, "Russell V. Presley," that prompted one of the staff construed to mean that we were involved in the lawsuit of Russell versus Presley.
Friday, June 29, 2007
I'm just hoping for three bars in front of the TV
This Slashdot post says the new WiFi distance record is over 200 miles.
Maybe instead of the router from upstairs, I need to be connecting to something in Staunton.
Maybe instead of the router from upstairs, I need to be connecting to something in Staunton.
Good books read lately
Since last week's trial, I've been back to the library.
I just read Kinfolks and re-read Kinflicks by Lisa Alther. (I told Jim Elliott that I first read Kinflicks sometime before 1977, and decided at the time I wasn't old enough to read it. I may not be now, either.)
Having just read a Julius Caesar, I had to read a Cicero.
Now, I'm reading a biography of James Dickey, by Henry Hart, of the College of William & Mary.
One to catch sometime - Weird Virginia, reviewed here by Joe Kennedy.
I just read Kinfolks and re-read Kinflicks by Lisa Alther. (I told Jim Elliott that I first read Kinflicks sometime before 1977, and decided at the time I wasn't old enough to read it. I may not be now, either.)
Having just read a Julius Caesar, I had to read a Cicero.
Now, I'm reading a biography of James Dickey, by Henry Hart, of the College of William & Mary.
One to catch sometime - Weird Virginia, reviewed here by Joe Kennedy.
Wednesday, June 27, 2007
The new girl
A low-res phone cam image of Jenna, who brought the head of a dead mouse into the house last night.
Sunday, June 24, 2007
The Rose Hill website
Here is the new website for Rose Hill, in Lee County.
It says my sister Joan is the webmaster.
Regarding the Rose Hill internet project, it has this report, of stuff that has since happened:
"A grand opening event for the new Rose Hill Library computer center is scheduled for June 11, 2007. The public is invited to attend. The grand opening event festivities will begin at 11:45AM with live music provided by the Wilderness Road Dulcimer Club. Speakers will begin at 12:30PM, including presentations by U.S. Congressman Rick Boucher, Virginia Senator William Wampler, and Virginia Delegate Terry Kilgore. Executive Director of LENOWISCO Planning District Commission, Ron Flanary, reports, "The Connect Rose Hill project is part of regional, collaborative efforts to provide access to broadband Internet across southwest Virginia. We're very proud to be offering broadband service in western Lee County."
Construction of the new wing onto the Rose Hill Library is complete and now houses a 10-station computer center. The project collaborators include LENOWISCO, Sunset Digital Communications, Lee County, Lonesome Pine Regional Library, Appalachian Resources, LLC, Lane Engineering, and Pete Sumpter General Contractor, Inc. LENOWISCO contracted with Sunset Digital Communications, owned and operated by Jonesville resident Paul Elswick, to serve as the Internet service provider for the computer center. Sunset Digital Communications is a Virginia Interexchange Carrier Internet Service Provider that manages the LENOWISCO Rural Area Network - a high speed regional fiber optic network that provides services to the businesses and residents of Southwest Virginia. Lee County owns the Rose Hill Library building and Lonesome Pine Regional Library manages the Rose Hill Library. A Lee County-based firm, Pete Sumpter General Contractor, Inc., completed the construction of the library wing. Lane Engineering prepared the architectural design and engineering services for the library wing construction project. Bobby R. Lane of Lane Engineering stated, "The construction of the library wing was a smooth project, staying within budget and on-time. We enjoyed helping to create such a wonderful facility in western Lee County."
The new computer center will provide free access to high speed Internet and offer free computer and Internet training workshops. Amy Bond, Executive Director of Lonesome Pine Regional Library reports, "Effective June 11, 2007, when the Rose Hill Library's new computer center opens, we will expand the library's operating hours to 40 hours each week, including some evening and weekend hours. Accordingly, the Rose Hill Library will be open as follows: Mondays and Fridays from 8:30AM to 5:00PM, Tuesdays and Thursdays from 11:30AM to 8:00PM, Wednesdays from 8:00AM to noon, and Saturdays from 10:00AM to 2:00PM."
Free computer and Internet training workshops will be provided in the new computer center beginning in June. Workshops will be typically scheduled for Monday mornings at 10:00AM and Thursday evenings at 6:00PM. Workshops scheduled for June and July include Computer Basics, Internet Basics, E-Mail Basics, Basic Keyboarding, Using the Mouse, Microsoft Word 2003, and Digital Photo. The first workshop, Computer Basics, will be held on June 14, 2007 at 6:00PM.
In addition, a Rose Hill website will be launched in June on the Internet at www.rosehillvirginia.org. LENOWISCO has contracted with Appalachian Resources, LLC, a Rose Hill-based consulting firm, to develop and maintain the new Rose Hill community website. Joan Porter, Manager of Appalachian Resources, LLC explains, "The Rose Hill website will include local photos, business directory, church directory, area attractions, and an interactive Rose Hill blog."
The "Connect Rose Hill" project is bringing high speed Internet access to the Rose Hill Elementary School, Rose Hill Library, and Rose Hill homes and businesses.
The U.S. Department of Agriculture (USDA) Rural Utilities Service's Community Connect Broadband Program is providing the primary financial support to LENOWISCO for the "Connect Rose Hill" project. The USDA Community Connect grant is providing $506,048 for the "Connect Rose Hill" project. Additional funding for the project and other regional broadband expansion is being provided by the Virginia Tobacco Indemnification and Revitalization Commission. The C. Bascom Slemp Foundation, Lee County, and Lee County Community Foundation provided further financial support for the Rose Hill Library project."
It says my sister Joan is the webmaster.
Regarding the Rose Hill internet project, it has this report, of stuff that has since happened:
"A grand opening event for the new Rose Hill Library computer center is scheduled for June 11, 2007. The public is invited to attend. The grand opening event festivities will begin at 11:45AM with live music provided by the Wilderness Road Dulcimer Club. Speakers will begin at 12:30PM, including presentations by U.S. Congressman Rick Boucher, Virginia Senator William Wampler, and Virginia Delegate Terry Kilgore. Executive Director of LENOWISCO Planning District Commission, Ron Flanary, reports, "The Connect Rose Hill project is part of regional, collaborative efforts to provide access to broadband Internet across southwest Virginia. We're very proud to be offering broadband service in western Lee County."
Construction of the new wing onto the Rose Hill Library is complete and now houses a 10-station computer center. The project collaborators include LENOWISCO, Sunset Digital Communications, Lee County, Lonesome Pine Regional Library, Appalachian Resources, LLC, Lane Engineering, and Pete Sumpter General Contractor, Inc. LENOWISCO contracted with Sunset Digital Communications, owned and operated by Jonesville resident Paul Elswick, to serve as the Internet service provider for the computer center. Sunset Digital Communications is a Virginia Interexchange Carrier Internet Service Provider that manages the LENOWISCO Rural Area Network - a high speed regional fiber optic network that provides services to the businesses and residents of Southwest Virginia. Lee County owns the Rose Hill Library building and Lonesome Pine Regional Library manages the Rose Hill Library. A Lee County-based firm, Pete Sumpter General Contractor, Inc., completed the construction of the library wing. Lane Engineering prepared the architectural design and engineering services for the library wing construction project. Bobby R. Lane of Lane Engineering stated, "The construction of the library wing was a smooth project, staying within budget and on-time. We enjoyed helping to create such a wonderful facility in western Lee County."
The new computer center will provide free access to high speed Internet and offer free computer and Internet training workshops. Amy Bond, Executive Director of Lonesome Pine Regional Library reports, "Effective June 11, 2007, when the Rose Hill Library's new computer center opens, we will expand the library's operating hours to 40 hours each week, including some evening and weekend hours. Accordingly, the Rose Hill Library will be open as follows: Mondays and Fridays from 8:30AM to 5:00PM, Tuesdays and Thursdays from 11:30AM to 8:00PM, Wednesdays from 8:00AM to noon, and Saturdays from 10:00AM to 2:00PM."
Free computer and Internet training workshops will be provided in the new computer center beginning in June. Workshops will be typically scheduled for Monday mornings at 10:00AM and Thursday evenings at 6:00PM. Workshops scheduled for June and July include Computer Basics, Internet Basics, E-Mail Basics, Basic Keyboarding, Using the Mouse, Microsoft Word 2003, and Digital Photo. The first workshop, Computer Basics, will be held on June 14, 2007 at 6:00PM.
In addition, a Rose Hill website will be launched in June on the Internet at www.rosehillvirginia.org. LENOWISCO has contracted with Appalachian Resources, LLC, a Rose Hill-based consulting firm, to develop and maintain the new Rose Hill community website. Joan Porter, Manager of Appalachian Resources, LLC explains, "The Rose Hill website will include local photos, business directory, church directory, area attractions, and an interactive Rose Hill blog."
The "Connect Rose Hill" project is bringing high speed Internet access to the Rose Hill Elementary School, Rose Hill Library, and Rose Hill homes and businesses.
The U.S. Department of Agriculture (USDA) Rural Utilities Service's Community Connect Broadband Program is providing the primary financial support to LENOWISCO for the "Connect Rose Hill" project. The USDA Community Connect grant is providing $506,048 for the "Connect Rose Hill" project. Additional funding for the project and other regional broadband expansion is being provided by the Virginia Tobacco Indemnification and Revitalization Commission. The C. Bascom Slemp Foundation, Lee County, and Lee County Community Foundation provided further financial support for the Rose Hill Library project."
April speaks
Here at Hillbilly Savant April Cain wrestles with what to think about the proposed new coal-powered electricity generation plant in Wise County.
She concludes:
"But I'd also like to see the store fronts of Saint Paul bustling again. In my dreams I can walk along its main street on the sidewalk and look at all the pretty things that are in the windows, just like in my childhood. In these visions, its main business district will always have a Western Auto, a Norton Floral Shop, a Woolworth's and a Willis Department Store instead of empty storefronts. I wish someone could find a way to make this happen without also making a big ugly mess. In my dreams someone besides Big Power and Big Coal will come a courtin' the Perty Miss Southwest Virginia. But if no one else comes, perhaps a less than perfect marriage might be better than her continuing to be an economic spinster."
She concludes:
"But I'd also like to see the store fronts of Saint Paul bustling again. In my dreams I can walk along its main street on the sidewalk and look at all the pretty things that are in the windows, just like in my childhood. In these visions, its main business district will always have a Western Auto, a Norton Floral Shop, a Woolworth's and a Willis Department Store instead of empty storefronts. I wish someone could find a way to make this happen without also making a big ugly mess. In my dreams someone besides Big Power and Big Coal will come a courtin' the Perty Miss Southwest Virginia. But if no one else comes, perhaps a less than perfect marriage might be better than her continuing to be an economic spinster."
Friday, June 22, 2007
The old girl
Here's an old Chrissy picture I just found on this machine. I was talking about her this week, or trying to.
Ouch
Well, we had a trial this week and lost. The Kingsport paper has this account.
As I've written before, I've been in a number of these Elrod cases, and the Democrat side has won every time, as plaintiffs and as defendants, regardless of the judge or the jury division (Big Stone Gap, Abingdon, Roanoke), except for one case where the verdict was overturned on appeal.
In law school, I met John Tucker, the husband of Professor Jayne Barnard, who represented the plaintiffs in the Elrod case, and who wrote a lively and entertaining book about that case and others from his law practice in Chicago.
In one case, we got a remittitur at the trial court level, from $85,000 to $15,000 (then won outright on appeal). In the district court, we made these arguments, back in 1998:
"At trial, the defendant moved for judgment as a matter of law on emotional distress damages, citing the Fourth Circuit’s decision in Price v. City of Charlotte, 93 F.3d 1241 (4th Cir. 1996). The Price court dealt with two issues related to damages. One was the quantity and quality of proof necessary to support a damages claim. The other was the kind of causation that must be shown for the plaintiff to recover.
In Price, the Court noted that "[t]raditionally, common law courts have been reticent regarding compensatory damages in the absence of a physical injury.” 93 F.2d at 1250. "Empathizing with the trepidation of common law courts in analyzing such claims, the federal courts have recognized that emotional distress claims arising from constitutional violations are not immunized from the nebulous, speculative character that plagues their common law analogues." Id. The Court observed that "the only evidence of Appellees’ emotional distress was their own testimony." Id.
"[T]he case law reveals that courts scrupulously analyze an award of compensatory damages for a claim of emotional distress predicated exclusively on the plaintiff's testimony." Id. (citing cases). "If, as in the instant appeal, 'the part[ies] provide the sole evidence [of emotional distress, they] must reasonably and sufficiently explain the circumstances of [their] injury and not resort to mere conclusory statements . . . and seriatim recitations of 'depression' or 'hurt feelings' as evidence of emotional distress offered by the plaintiff fail to meet this standard." Id. "A plaintiff asserting a constitutional violation, therefore, must produce evidence of 'demonstrable emotional distress' or 'demonstrable mental anguish.'" Id.
The Price court examined a number of opinions where emotional distress verdict were rejected and distilled the factors on which the courts relied. Other later opinions are consistent with the analysis in Price. In Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996), the Fifth Circuit struck the emotional distress award in a section 1981 case and directed the court on remand to award only nominal damages. The Court observed:
In order to establish intangible loss, we recognize that Carey requires a degree of specificity which may include corroborating testimony or medical or psychological evidence in support of the damage award. . . . Hurt feelings, anger, and frustration are part of life. Unless the cause of action manifests some discernible injury to the claimant’s emotional state, we cannot say that the specificity requirement of Carey has been met. Consequently, based on the above reasoning, we hold that the district court abused its discretion in awarding emotional distress damages to Brown on his § 1981 claim. We vacate the district court's $40,000 emotional distress award and remand the case with instructions for the district court to award nominal damages.
Patterson, 90 F.3d at 940; see Annis v. County of Westchester, 1998 WL 49317 at *10 (2d Cir. 1998) (vacating verdict for employee-plaintiff on grounds that plaintiff’s uncorroborated testimony was insufficient to warrant an award of emotional distress damages, where there were no physical manifestations and plaintiff remained employed).
The same defects in plaintiffs’ testimony in Price are present here: no corroboration, no physical symptoms, no change in lifestyle, no treatment, no out-of-pocket losses related to the alleged emotional distress (in fact, no out-of-pocket losses at all).
. . .
The point of Price is that the causation that is required is that the constitutional violation must cause the damage, as distinct from the loss of government benefits incidental to the violation. "[C]ompensatory damages for emotional distress must be attributed to the actual constitutional violation, as opposed to the denial of the ultimate benefit, and must be proved by a sufficient quantum of proof demonstrating that the violation caused compensable injury." Price, 93 F.3d at 1246 (citing Carey v. Piphus, 435 U.S. 247 (1978)). "Carey . . . teaches that compensatory damages for emotional distress are available for a constitutional violation, but must be attributed to the invidious discrimination, not to the deprivation of an ultimate benefit, to recover more than nominal damages, actual injury must be caused by the constitutional violation must be proved by sufficient evidence." Id. The Price court observed its earlier decision in Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) (per curiam). "In remanding, we observed that in order to recover such damages, Burt must prove that her injury flowed from the denial of due process, not from termination of her teaching position, the denial of her ultimate benefit." Price, 93 F.3d at 1247.
Applying this discussion to the facts of Price, the Court observed "Appellees must establish that their injury is grounded in the denial of equal protection, not their lack of promotions." Id. at 1248. Similarly, the burden is on the plaintiff in this case to prove that his damages were caused by the constitutional right, and not the deprivation of the ultimate employment benefit.
. . .
Where the Court is convinced that a damages award is excessive, it may order a new trial, a new trial on damages, or a remittitur. Defendant has argued above, based on Price, that judgment as a matter of law should be entered. In the alternative, if the Court is of the view that some amount of emotional distress may be recoverable, nevertheless it should order a new trial or direct the remittitur of the award, on the basis of Price and Hetzel v. County of Prince William, 89 F.3d 169 (4th Cir. 1996).
In Hetzel, plaintiff claimed to be the victim of various forms of unlawful discrimination, although she was not discharged. The jury rejected all but one of her claims, yet awarded $750,000 for her emotional distress, which the District Court reduced to $500,000. 89 F.3d at 170. The appeals court reversed and remanded, concluding that the damage award was excessive as a matter of law.
As in this case, Hetzel relied exclusively on her own brief, conclusory statements to prove her emotional distress damages. She kept her job, never sought counseling, suffered no impairment of job performance, and presented no corroborating evidence. 89 F.3d at 171. "Hetzel’s thin evidence of rather limited damages would in-and-of itself entitle her to only a minimal award of damages." Id. The Court also observed the problem of causation, that most of Hetzel’s was caused by factors other than the claim on which the County was found liable. Id.
"That this award is outrageous is confirmed by even a cursory analysis of the impressive array of cases cited by appellee . . . . These cases, all of which contained a substantial award of $25,000 or more for intangible injuries such as emotional distress, involved plaintiffs that were either the victims of invidious discrimination, suffered serious — often permanent — physical injuries, or were discharged and had difficulty finding alternative employment." Id. at 172. "In stark contrast to these cases . . . Hetzel suffered no discrimination, was not physically injured, is not under a physician’s care, and remains an officer in good standing." Id.
. . .
In remanding the case, the Court suggested Bradley v. Carydale Enter., 730 F. Supp. 709 (E.D.Va. 1989) and McClam v. City of Norfolk Police Dept., 877 F. Supp. 277 (E.D.Va. 1995) as "comparable to what would be an appropriate award in this case." 89 F.3d at 173. The plaintiffs in Bradley and McClam were awarded emotional distress damages in the amounts of $9,000 and $15,000, respectively. Bradley, 730 F. Supp. at 726; McClam, 877 F. Supp. at 284. McClam cites Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir. 1989). In Cygnar, the Seventh Circuit approved remittitur from $55,000 to $15,000, in an employment case involving job transfers, which the Court distinguished from discharge cases. 865 F.2d at 848.
The few local decisions in analogous cases highlight the excessiveness of the verdict in this case. In Chester v. Wise County Electoral Board, Civil Action No. 95-0037-B, aff’d, 117 F.3d 1413, 1997 WL 381964 (4th Cir. 1997) (unpublished opinion), plaintiff was out of work for six months, but was awarded only $5,000 for his emotional distress. In Roberson v. Mullins, 876 F. Supp. 100 (W.D. Va. 1995), plaintiff was discharged; the Court awarded $10,000 for his emotional distress. In Bockes v. Fields, 798 F. Supp. 1219 (W.D. Va. 1992), aff’d in part and rev’d in part, 999 F.2d 788 (4th Cir. 1993), plaintiff was discharged without pre-termination due process but reinstated before trial; she was awarded $20,000.
Based on the analysis in Hetzel, the $85,000 in this case is clearly excessive. The Court should order a new trial. In the alternative, the Court should order a remittitur, with the condition that a new trial will be granted unless plaintiff accepts reduction in the verdict to an appropriate amount, which based on Hetzel could be no more than $15,000."
As I've written before, I've been in a number of these Elrod cases, and the Democrat side has won every time, as plaintiffs and as defendants, regardless of the judge or the jury division (Big Stone Gap, Abingdon, Roanoke), except for one case where the verdict was overturned on appeal.
In law school, I met John Tucker, the husband of Professor Jayne Barnard, who represented the plaintiffs in the Elrod case, and who wrote a lively and entertaining book about that case and others from his law practice in Chicago.
In one case, we got a remittitur at the trial court level, from $85,000 to $15,000 (then won outright on appeal). In the district court, we made these arguments, back in 1998:
"At trial, the defendant moved for judgment as a matter of law on emotional distress damages, citing the Fourth Circuit’s decision in Price v. City of Charlotte, 93 F.3d 1241 (4th Cir. 1996). The Price court dealt with two issues related to damages. One was the quantity and quality of proof necessary to support a damages claim. The other was the kind of causation that must be shown for the plaintiff to recover.
In Price, the Court noted that "[t]raditionally, common law courts have been reticent regarding compensatory damages in the absence of a physical injury.” 93 F.2d at 1250. "Empathizing with the trepidation of common law courts in analyzing such claims, the federal courts have recognized that emotional distress claims arising from constitutional violations are not immunized from the nebulous, speculative character that plagues their common law analogues." Id. The Court observed that "the only evidence of Appellees’ emotional distress was their own testimony." Id.
"[T]he case law reveals that courts scrupulously analyze an award of compensatory damages for a claim of emotional distress predicated exclusively on the plaintiff's testimony." Id. (citing cases). "If, as in the instant appeal, 'the part[ies] provide the sole evidence [of emotional distress, they] must reasonably and sufficiently explain the circumstances of [their] injury and not resort to mere conclusory statements . . . and seriatim recitations of 'depression' or 'hurt feelings' as evidence of emotional distress offered by the plaintiff fail to meet this standard." Id. "A plaintiff asserting a constitutional violation, therefore, must produce evidence of 'demonstrable emotional distress' or 'demonstrable mental anguish.'" Id.
The Price court examined a number of opinions where emotional distress verdict were rejected and distilled the factors on which the courts relied. Other later opinions are consistent with the analysis in Price. In Patterson v. P.H.P. Healthcare Corp., 90 F.3d 927 (5th Cir. 1996), the Fifth Circuit struck the emotional distress award in a section 1981 case and directed the court on remand to award only nominal damages. The Court observed:
In order to establish intangible loss, we recognize that Carey requires a degree of specificity which may include corroborating testimony or medical or psychological evidence in support of the damage award. . . . Hurt feelings, anger, and frustration are part of life. Unless the cause of action manifests some discernible injury to the claimant’s emotional state, we cannot say that the specificity requirement of Carey has been met. Consequently, based on the above reasoning, we hold that the district court abused its discretion in awarding emotional distress damages to Brown on his § 1981 claim. We vacate the district court's $40,000 emotional distress award and remand the case with instructions for the district court to award nominal damages.
Patterson, 90 F.3d at 940; see Annis v. County of Westchester, 1998 WL 49317 at *10 (2d Cir. 1998) (vacating verdict for employee-plaintiff on grounds that plaintiff’s uncorroborated testimony was insufficient to warrant an award of emotional distress damages, where there were no physical manifestations and plaintiff remained employed).
The same defects in plaintiffs’ testimony in Price are present here: no corroboration, no physical symptoms, no change in lifestyle, no treatment, no out-of-pocket losses related to the alleged emotional distress (in fact, no out-of-pocket losses at all).
. . .
The point of Price is that the causation that is required is that the constitutional violation must cause the damage, as distinct from the loss of government benefits incidental to the violation. "[C]ompensatory damages for emotional distress must be attributed to the actual constitutional violation, as opposed to the denial of the ultimate benefit, and must be proved by a sufficient quantum of proof demonstrating that the violation caused compensable injury." Price, 93 F.3d at 1246 (citing Carey v. Piphus, 435 U.S. 247 (1978)). "Carey . . . teaches that compensatory damages for emotional distress are available for a constitutional violation, but must be attributed to the invidious discrimination, not to the deprivation of an ultimate benefit, to recover more than nominal damages, actual injury must be caused by the constitutional violation must be proved by sufficient evidence." Id. The Price court observed its earlier decision in Burt v. Abel, 585 F.2d 613 (4th Cir. 1978) (per curiam). "In remanding, we observed that in order to recover such damages, Burt must prove that her injury flowed from the denial of due process, not from termination of her teaching position, the denial of her ultimate benefit." Price, 93 F.3d at 1247.
Applying this discussion to the facts of Price, the Court observed "Appellees must establish that their injury is grounded in the denial of equal protection, not their lack of promotions." Id. at 1248. Similarly, the burden is on the plaintiff in this case to prove that his damages were caused by the constitutional right, and not the deprivation of the ultimate employment benefit.
. . .
Where the Court is convinced that a damages award is excessive, it may order a new trial, a new trial on damages, or a remittitur. Defendant has argued above, based on Price, that judgment as a matter of law should be entered. In the alternative, if the Court is of the view that some amount of emotional distress may be recoverable, nevertheless it should order a new trial or direct the remittitur of the award, on the basis of Price and Hetzel v. County of Prince William, 89 F.3d 169 (4th Cir. 1996).
In Hetzel, plaintiff claimed to be the victim of various forms of unlawful discrimination, although she was not discharged. The jury rejected all but one of her claims, yet awarded $750,000 for her emotional distress, which the District Court reduced to $500,000. 89 F.3d at 170. The appeals court reversed and remanded, concluding that the damage award was excessive as a matter of law.
As in this case, Hetzel relied exclusively on her own brief, conclusory statements to prove her emotional distress damages. She kept her job, never sought counseling, suffered no impairment of job performance, and presented no corroborating evidence. 89 F.3d at 171. "Hetzel’s thin evidence of rather limited damages would in-and-of itself entitle her to only a minimal award of damages." Id. The Court also observed the problem of causation, that most of Hetzel’s was caused by factors other than the claim on which the County was found liable. Id.
"That this award is outrageous is confirmed by even a cursory analysis of the impressive array of cases cited by appellee . . . . These cases, all of which contained a substantial award of $25,000 or more for intangible injuries such as emotional distress, involved plaintiffs that were either the victims of invidious discrimination, suffered serious — often permanent — physical injuries, or were discharged and had difficulty finding alternative employment." Id. at 172. "In stark contrast to these cases . . . Hetzel suffered no discrimination, was not physically injured, is not under a physician’s care, and remains an officer in good standing." Id.
. . .
In remanding the case, the Court suggested Bradley v. Carydale Enter., 730 F. Supp. 709 (E.D.Va. 1989) and McClam v. City of Norfolk Police Dept., 877 F. Supp. 277 (E.D.Va. 1995) as "comparable to what would be an appropriate award in this case." 89 F.3d at 173. The plaintiffs in Bradley and McClam were awarded emotional distress damages in the amounts of $9,000 and $15,000, respectively. Bradley, 730 F. Supp. at 726; McClam, 877 F. Supp. at 284. McClam cites Cygnar v. City of Chicago, 865 F.2d 827 (7th Cir. 1989). In Cygnar, the Seventh Circuit approved remittitur from $55,000 to $15,000, in an employment case involving job transfers, which the Court distinguished from discharge cases. 865 F.2d at 848.
The few local decisions in analogous cases highlight the excessiveness of the verdict in this case. In Chester v. Wise County Electoral Board, Civil Action No. 95-0037-B, aff’d, 117 F.3d 1413, 1997 WL 381964 (4th Cir. 1997) (unpublished opinion), plaintiff was out of work for six months, but was awarded only $5,000 for his emotional distress. In Roberson v. Mullins, 876 F. Supp. 100 (W.D. Va. 1995), plaintiff was discharged; the Court awarded $10,000 for his emotional distress. In Bockes v. Fields, 798 F. Supp. 1219 (W.D. Va. 1992), aff’d in part and rev’d in part, 999 F.2d 788 (4th Cir. 1993), plaintiff was discharged without pre-termination due process but reinstated before trial; she was awarded $20,000.
Based on the analysis in Hetzel, the $85,000 in this case is clearly excessive. The Court should order a new trial. In the alternative, the Court should order a remittitur, with the condition that a new trial will be granted unless plaintiff accepts reduction in the verdict to an appropriate amount, which based on Hetzel could be no more than $15,000."
Thursday, June 14, 2007
Penalty clause in commercial real estate contract declared invalid
In ACL Realty Corp. v. .Com Properties, LLC, Judge Conrad of the W.D. Va. declared invalid as a penalty a provision in a real estate contract, where the contract provided separately for liquidated damages and the amount of money to be paid under the contested provision was disproportionate to any actual damages.
I tried to argue something similar related to the late fees in an equipment lease, not too long ago, citing among other cases Abbs's Moving Service v. Wooldridge, 612 So. 2d 449, 452 (Ala. 1993) ("We have considered the argument that the late fee provisions of the lease should be declared a penalty and, therefore, void as against public policy. We conclude from a reading of the lease--which allows for a 5% charge for rent 5 days overdue and then an additional 5% charge for every 30 days thereafter that a portion of the rent is outstanding--that the lease imposes a penalty.")
Under Va. Code § 8.2A-108(1), a court can refuse to enforce an unconscionable term in an equipment lease.
I tried to argue something similar related to the late fees in an equipment lease, not too long ago, citing among other cases Abbs's Moving Service v. Wooldridge, 612 So. 2d 449, 452 (Ala. 1993) ("We have considered the argument that the late fee provisions of the lease should be declared a penalty and, therefore, void as against public policy. We conclude from a reading of the lease--which allows for a 5% charge for rent 5 days overdue and then an additional 5% charge for every 30 days thereafter that a portion of the rent is outstanding--that the lease imposes a penalty.")
Under Va. Code § 8.2A-108(1), a court can refuse to enforce an unconscionable term in an equipment lease.
Webb and Warner send five names to White House for Fourth Circuit
The Richmond paper reports here, the Roanoke paper reports here, and the Charlottesville paper reports here that Senators Warner and Webb have sent to President Bush the names of Justices Agee and Lemons, U.S. District Judge Conrad, lawyer Thomas Albro, and Richmond law professor John Douglass for nomination to the Fourth Circuit.
If those are the choices, I'm rooting for Judge Conrad, whom my Grandma Conrad claimed was somehow kin to us, and is from Southwest Virginia and lived for a while in Abingdon, and went to William & Mary Law, and clerked in the W.D. Va. before he became magistrate judge.
If those are the choices, I'm rooting for Judge Conrad, whom my Grandma Conrad claimed was somehow kin to us, and is from Southwest Virginia and lived for a while in Abingdon, and went to William & Mary Law, and clerked in the W.D. Va. before he became magistrate judge.
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