It appears I wasn't the only one with this experience, as I received an e-mail that says:
September 25, 2007
Dear V-Pass Customer,
We apologize the live online audio broadcast of Georgia Tech at Virginia football game on Saturday, Sept. 22 dropped silent near the end of the game. We have resolved the technical issue that caused this to happen and we are confident a similar occurrence will not happen again.
----
Pay $40, and it conks out right at the end of the game.
Tuesday, September 25, 2007
Your division leader
ACC COASTAL DIVISION
School, Conference, Overall
Virginia, 3-0, 3-1
Miami, 0-1, 3-1
Virginia Tech, 0-0, 3-1
Duke, 0-1, 1-3
North Carolina, 0-1, 1-3
Georgia Tech, 0-2, 2-2
School, Conference, Overall
Virginia, 3-0, 3-1
Miami, 0-1, 3-1
Virginia Tech, 0-0, 3-1
Duke, 0-1, 1-3
North Carolina, 0-1, 1-3
Georgia Tech, 0-2, 2-2
Sunday, September 23, 2007
Weekend project
Since I didn't go to the Georgia Tech game, didn't work, didn't play golf, and didn't mow the grass, yesterday and today I wrote my first-ever Wikipedia entry, on Judge Robert W. Hughes.
Best thing I read today
Today's Bristol paper had this Sharon Randall column, about taking her brother, a life-long Clemson fan who is blind, to his first in-person Tigers football game at Death Valley.
It says they had a big time.
The last time I linked to Sharon Randall, her son took her to the Final Four.
It says they had a big time.
The last time I linked to Sharon Randall, her son took her to the Final Four.
On the late Judge Cridlin
Besides Judge Widener on Wednesday, retired Judge Joseph Cridlin of Lee County died on Friday.
The Bristol paper published this obituary:
"JONESVILLE, Va. – Judge Joseph N. Cridlin, 94, of Jonesville, Va., was born April 13, 1913 and passed away Sept. 21, 2007, at Lee Regional Medical Center in Pennington Gap, Va.
His parents, Judge George Patton Cridlin and Sallie Campbell Smith Cridlin, preceded him in death.
Judge Cridlin was a lifelong resident of Lee County and a graduate of William & Mary College and the Marshall Wythe School of Law. He began his law practice in Jonesville in 1935 and was appointed as a Virginia Circuit Court judge in 1960, retiring in 1975. He continued to do substitute judicial work for the next 20 years and was a member of the Virginia State Bar for 72 years. At the time of his death, Judge Cridlin was president and chairman of the board of Powell Valley National Bank in Jonesville.
Judge Cridlin served in the U.S. Army for four years during World War II with tours of duty in Australia, New Guinea and the Philippines. He was commissioned as a 1st lieutenant before being discharged in 1946.
Judge Cridlin was a lifelong member of the Jonesville First United Methodist Church, where he taught Sunday school for over 40 years. He was a charter member and first president of the Jonesville Lions Club in 1940. He was also a charter member of the Cedar Hill Country Club, a Mason and a member of Preston Masonic Lodge No. 47 AF&AM since 1940.
In addition to his parents, Judge Cridlin was preceded in death by his wife, Fay Fuller Cridlin, brother, Clyde Y. Cridlin, and sister, Roberta Cridlin Vergara.
He is survived by son, George Fuller Cridlin and wife Karen, Jonesville, Va.; daughter, Josephine Cridlin Roddenberry and husband Ken, Jonesville, Va.; grandchildren, Stephanie Rowlett Dourado and husband Eli, Arlington, Va., Joseph Patton Cridlin and wife Shelley, St Petersburg, Fla., and Harrison Fuller Cridlin, Jonesville, Va."
Not too long ago I had this post about Judge Cridlin.
The Bristol paper published this obituary:
"JONESVILLE, Va. – Judge Joseph N. Cridlin, 94, of Jonesville, Va., was born April 13, 1913 and passed away Sept. 21, 2007, at Lee Regional Medical Center in Pennington Gap, Va.
His parents, Judge George Patton Cridlin and Sallie Campbell Smith Cridlin, preceded him in death.
Judge Cridlin was a lifelong resident of Lee County and a graduate of William & Mary College and the Marshall Wythe School of Law. He began his law practice in Jonesville in 1935 and was appointed as a Virginia Circuit Court judge in 1960, retiring in 1975. He continued to do substitute judicial work for the next 20 years and was a member of the Virginia State Bar for 72 years. At the time of his death, Judge Cridlin was president and chairman of the board of Powell Valley National Bank in Jonesville.
Judge Cridlin served in the U.S. Army for four years during World War II with tours of duty in Australia, New Guinea and the Philippines. He was commissioned as a 1st lieutenant before being discharged in 1946.
Judge Cridlin was a lifelong member of the Jonesville First United Methodist Church, where he taught Sunday school for over 40 years. He was a charter member and first president of the Jonesville Lions Club in 1940. He was also a charter member of the Cedar Hill Country Club, a Mason and a member of Preston Masonic Lodge No. 47 AF&AM since 1940.
In addition to his parents, Judge Cridlin was preceded in death by his wife, Fay Fuller Cridlin, brother, Clyde Y. Cridlin, and sister, Roberta Cridlin Vergara.
He is survived by son, George Fuller Cridlin and wife Karen, Jonesville, Va.; daughter, Josephine Cridlin Roddenberry and husband Ken, Jonesville, Va.; grandchildren, Stephanie Rowlett Dourado and husband Eli, Arlington, Va., Joseph Patton Cridlin and wife Shelley, St Petersburg, Fla., and Harrison Fuller Cridlin, Jonesville, Va."
Not too long ago I had this post about Judge Cridlin.
Saturday, September 22, 2007
Terminological inexactitude and qualified immunity
For reasons that are not entirely clear to me, Judge Shedd in the case of Henry v. Purnell decided to hold forth on a number of the oddities of the law of qualified immunity, in the Fourth Circuit.
The Supreme Court requires the two-parts of the qualified immunity to be addressed in a particular sequence, for reasons that are not entirely satisfactory. The initial inquiry is whether the plaintiff has stated or proven sufficient facts to show a constitutional violation - in other words, does the plaintiff have a case on the merits? If the trial court decides this first inquiry against the plaintiff, is it a decision based on qualified immunity, or not? And, does it matter?
Judge Shedd notes:
"When resolving cases on the first Saucier question, courts sometimes state that the absence of a constitutional violation entitles the defendant to qualified immunity. At least one circuit court has specifically rejected this approach, noting that a defendant in that instance prevails not because of qualified immunity but, instead, because the plaintiff "did not prove an essential element of the § 1983 claim." Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007). In several recent opinions, the Supreme Court appears to have segregated the initial Saucier inquiry of whether a constitutional violation occurred from the second inquiry of whether the defendant is entitled to qualified immunity. See, e.g., Morse v. Frederick, ___ U.S. ___, 127 S. Ct. 2618, 2624 & n.1 (2007) (expressly declining to decide the case on qualified immunity grounds based on the conclusion that no constitutional violation occurred); Groh v. Ramirez, 540 U.S. 551, 563 (2004) ("Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation."); Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (expressing "no view as to the correctness of the Court of Appeals’ decision on the constitutional question" because, in any event, "the Court of Appeals was wrong on the issue of qualified immunity"); see also id. at 601 (Breyer, J., concurring) (noting that Saucier "requires lower courts to decide (1) the constitutional question prior to deciding (2) the qualified immunity question")."
Of course, the characterization makes some practical difference when the defendant's motion for summary judgment is denied, because an ordinary denial of summary judgment on the merits is not immediately appealable, but denial of a motion for summary judgment based on qualified immunity is immediately appealable.
The second point is how does the burden of proof apply to a motion for summary judgment based on qualified immunity. This opinion, for the first time that I can recall, undertakes a thorough survey of the language from the Fourth Circuit precedents on this point, which are contradictory and inconsistent with the explanations from some other circuits. Qualified immunity is an affirmative defense, that the defendant must raise, but the burden of proving the claim on the merits is always on the plaintiff.
Judge Shedd explained:
"The plaintiff bears the burden of proof on the first question — i.e., whether a constitutional violation occurred."
He goes on to say:
"The defendant bears the burden of proof on the second question — i.e., entitlement to qualified immunity."
In making this statement, the judge noted that other circuits and some of the Fourth Circuits take the opposite view. I'm not sure that even makes sense to say the defendant has the burden of proof on what is essentially a legal question - was the constitutional right violated by the defendant clearly established?
The Supreme Court requires the two-parts of the qualified immunity to be addressed in a particular sequence, for reasons that are not entirely satisfactory. The initial inquiry is whether the plaintiff has stated or proven sufficient facts to show a constitutional violation - in other words, does the plaintiff have a case on the merits? If the trial court decides this first inquiry against the plaintiff, is it a decision based on qualified immunity, or not? And, does it matter?
Judge Shedd notes:
"When resolving cases on the first Saucier question, courts sometimes state that the absence of a constitutional violation entitles the defendant to qualified immunity. At least one circuit court has specifically rejected this approach, noting that a defendant in that instance prevails not because of qualified immunity but, instead, because the plaintiff "did not prove an essential element of the § 1983 claim." Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007). In several recent opinions, the Supreme Court appears to have segregated the initial Saucier inquiry of whether a constitutional violation occurred from the second inquiry of whether the defendant is entitled to qualified immunity. See, e.g., Morse v. Frederick, ___ U.S. ___, 127 S. Ct. 2618, 2624 & n.1 (2007) (expressly declining to decide the case on qualified immunity grounds based on the conclusion that no constitutional violation occurred); Groh v. Ramirez, 540 U.S. 551, 563 (2004) ("Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation."); Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (expressing "no view as to the correctness of the Court of Appeals’ decision on the constitutional question" because, in any event, "the Court of Appeals was wrong on the issue of qualified immunity"); see also id. at 601 (Breyer, J., concurring) (noting that Saucier "requires lower courts to decide (1) the constitutional question prior to deciding (2) the qualified immunity question")."
Of course, the characterization makes some practical difference when the defendant's motion for summary judgment is denied, because an ordinary denial of summary judgment on the merits is not immediately appealable, but denial of a motion for summary judgment based on qualified immunity is immediately appealable.
The second point is how does the burden of proof apply to a motion for summary judgment based on qualified immunity. This opinion, for the first time that I can recall, undertakes a thorough survey of the language from the Fourth Circuit precedents on this point, which are contradictory and inconsistent with the explanations from some other circuits. Qualified immunity is an affirmative defense, that the defendant must raise, but the burden of proving the claim on the merits is always on the plaintiff.
Judge Shedd explained:
"The plaintiff bears the burden of proof on the first question — i.e., whether a constitutional violation occurred."
He goes on to say:
"The defendant bears the burden of proof on the second question — i.e., entitlement to qualified immunity."
In making this statement, the judge noted that other circuits and some of the Fourth Circuits take the opposite view. I'm not sure that even makes sense to say the defendant has the burden of proof on what is essentially a legal question - was the constitutional right violated by the defendant clearly established?
The Green and the Gold
A while back I read this item which says, among other things, that the faculty of the College of William & Mary have given their green and gold to federal candidates for '08 (as of July 30, 2007) at a ratio of 99% to Democrats and 1% to Republicans.
The Flat Hat says a Facebook survey shows that liberals outnumber conservatives among the William & Mary students on Facebook, 2.84 to 1.
The Flat Hat says a Facebook survey shows that liberals outnumber conservatives among the William & Mary students on Facebook, 2.84 to 1.
Friday, September 21, 2007
Some links
The Judicial Conference says - transcripts will soon be available online, through PACER at eight cents per page.
Once again, the NY Times says, it will quit charging for much of its content.
Here in this Megan McArdle post is debated the question, "How conservative is the Supreme Court? How deep is the ocean? How high is the sky?"
Once again, the NY Times says, it will quit charging for much of its content.
Here in this Megan McArdle post is debated the question, "How conservative is the Supreme Court? How deep is the ocean? How high is the sky?"
Thursday, September 20, 2007
On the late Judge Widener of the Fourth Circuit
The Bristol paper reports here that Senior Judge H. Emory Widener, Jr., of the U.S. Court of Appeals for the Fourth Circuit, died at his home here in Abingdon yesterday, at the age of 83.
My wife saw the article and asked me if this was the fellow with the hat who ate lunch at the Empire. Indeed, that's the one, the same man my dad knew from the Math Olympics, and who is the subject of posts here, here, and here.
My wife saw the article and asked me if this was the fellow with the hat who ate lunch at the Empire. Indeed, that's the one, the same man my dad knew from the Math Olympics, and who is the subject of posts here, here, and here.
Wednesday, September 19, 2007
Today's links
The Roanoke paper reports here on a Southwest Virginia farmer who filed suit over the use of his picture on a card that asks, would you rather be spanked or goosed? The case was filed in Roanoke County Circuit Court.
Here is a profile of a stout U.Va. man, who died at age 24 from muscular dystrophy.
Here from Time magazine and here from USAToday are items on the new Jeffrey Toobin book about the U.S. Supreme Court.
Here is a profile of a stout U.Va. man, who died at age 24 from muscular dystrophy.
Here from Time magazine and here from USAToday are items on the new Jeffrey Toobin book about the U.S. Supreme Court.
Tuesday, September 18, 2007
On Roanoke's Judge Coulter
The Roanoke paper had this story on the life and times of the late Circuit Court Judge Jack Coulter.
The article says in part:
"Coulter was twice nominated for seats on the Virginia Supreme Court, the second coming down to the flip of a coin. In 1987, Roanoke-area legislators flipped a coin to break a deadlock over whether to back Coulter or Chief Appeals Court Judge Lawrence Koontz for the state Supreme Court.
That seat eventually went to the Winchester Circuit Court Judge Henry Whiting. Koontz succeeded Whiting in 1995."
The article says in part:
"Coulter was twice nominated for seats on the Virginia Supreme Court, the second coming down to the flip of a coin. In 1987, Roanoke-area legislators flipped a coin to break a deadlock over whether to back Coulter or Chief Appeals Court Judge Lawrence Koontz for the state Supreme Court.
That seat eventually went to the Winchester Circuit Court Judge Henry Whiting. Koontz succeeded Whiting in 1995."
Monday, September 17, 2007
From the folks who brought us Ward Churchill
The Tallahassee paper reports:
"A 'Southern-type thing'
Billy Smith has been providing Florida State head coaches with on-field security since 1964. The sight of the retired Florida Highway patrolman on the sideline in uniform with a gun in his holster is just a part of Florida State football.
That practice, however, isn't to the liking of the University of Colorado, which according to Smith told him he couldn't be in uniform and could not have a gun. Smith said that was before FSU President T.K. Wetherell stepped in, talked to his Colorado counterpart and reached an agreement for Smith to be there on Saturday night.
“They allow their highway patrol, sheriff's office, police department and campus police but not the visiting trooper,” Smith said. “One of their people told me, 'Oh, you do the Southern-type thing.' ”
It's the first time Smith encountered the problem."
"A 'Southern-type thing'
Billy Smith has been providing Florida State head coaches with on-field security since 1964. The sight of the retired Florida Highway patrolman on the sideline in uniform with a gun in his holster is just a part of Florida State football.
That practice, however, isn't to the liking of the University of Colorado, which according to Smith told him he couldn't be in uniform and could not have a gun. Smith said that was before FSU President T.K. Wetherell stepped in, talked to his Colorado counterpart and reached an agreement for Smith to be there on Saturday night.
“They allow their highway patrol, sheriff's office, police department and campus police but not the visiting trooper,” Smith said. “One of their people told me, 'Oh, you do the Southern-type thing.' ”
It's the first time Smith encountered the problem."
On last week's Virginia Supreme Court rulings
Friday was decision day in the Virginia Supreme Court, the first of the fall. Here is the synopsis page. The VLW Blog has several posts on the decisions.
Here from the Norfolk paper, here from The Hook, here from the Richmond paper, and here from the Roanoke paper are stories about the decision in the Highland County wind farm case. The opinion is Miller v. Highland County, by Justice Keenan. It decides procedural issues related to the zoning.
Here from the Washington Post and here from the AP are stories on the tree injunction case, modernizing the tree law of the Commonwealth. The opinion is Fancher v. Fagella, by Senior Justice Russell. In this opinion, the Court replaced one judge-made rule with another, with unknown effects on property rights throughout the Commonwealth, in the interests of modernity and urbanization.
What's interesting is the Court almost adopted the Blackwelder test for injunctive relief, see Blackwelder Furn. Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977). The Court says, by way of advisory opinion: "The decision whether to grant an injunction always rests in the sound discretion of the chancellor, and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. Any burden imposed on the public should also be weighed. Akers v. Mathieson Alkali Works, 151 Va. 1, 8-9, 144 S.E. 492, 494 (1928)." Maybe Blackwelder adopts the Akers v. Mathieson Alkali test.
Here is a story from the Norfolk paper on the FOIA case decided against the Norfolk Airport Authority. The opinion is Fenter v. Norfolk Airport Authority, by Senior Justice Stephenson.
Here from the Leesburg paper is an article on the Supreme Court's decision reversing an order imposing a writ of mandamus against a town official, as part of a long-running dispute between Leesburg and a developer. The opinion is Umstattd v. Centex Homes, G.P., by Senior Justice Russell.
Here the Newport News paper reports on the Supreme Court's decision upholding a multi-million dollar verdict in an asbestos case. The opinion is John Crane, Inc. v. Jones, Admin'x.
Here from the Norfolk paper, here from The Hook, here from the Richmond paper, and here from the Roanoke paper are stories about the decision in the Highland County wind farm case. The opinion is Miller v. Highland County, by Justice Keenan. It decides procedural issues related to the zoning.
Here from the Washington Post and here from the AP are stories on the tree injunction case, modernizing the tree law of the Commonwealth. The opinion is Fancher v. Fagella, by Senior Justice Russell. In this opinion, the Court replaced one judge-made rule with another, with unknown effects on property rights throughout the Commonwealth, in the interests of modernity and urbanization.
What's interesting is the Court almost adopted the Blackwelder test for injunctive relief, see Blackwelder Furn. Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977). The Court says, by way of advisory opinion: "The decision whether to grant an injunction always rests in the sound discretion of the chancellor, and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. Any burden imposed on the public should also be weighed. Akers v. Mathieson Alkali Works, 151 Va. 1, 8-9, 144 S.E. 492, 494 (1928)." Maybe Blackwelder adopts the Akers v. Mathieson Alkali test.
Here is a story from the Norfolk paper on the FOIA case decided against the Norfolk Airport Authority. The opinion is Fenter v. Norfolk Airport Authority, by Senior Justice Stephenson.
Here from the Leesburg paper is an article on the Supreme Court's decision reversing an order imposing a writ of mandamus against a town official, as part of a long-running dispute between Leesburg and a developer. The opinion is Umstattd v. Centex Homes, G.P., by Senior Justice Russell.
Here the Newport News paper reports on the Supreme Court's decision upholding a multi-million dollar verdict in an asbestos case. The opinion is John Crane, Inc. v. Jones, Admin'x.
Thursday, September 13, 2007
Nominee No. 4
Via ConfirmThem, the Washington Post reports here that Rod Rosenstein, U.S. Attorney for the District of Maryland, will be nominated to the Fourth Circuit to the seat formerly held by the late Judge Murnaghan. There have been stories like this before about Rosenstein's prospects.
If it's true, then there would be four pending nominations for the five vacancies on the Fourth Circuit.
Give us one more - from Virginia.
If it's true, then there would be four pending nominations for the five vacancies on the Fourth Circuit.
Give us one more - from Virginia.
824 Supreme Court orders
It says here the Virginia Supreme Court entered 824 orders on motions other than for extension of time in 2005-2006.
Tuesday, September 11, 2007
Dahlia Lithwick smacks down Steve Matthews on account of Rush Limbaugh
This column in Slate gives the latest nominees to the Fourth Circuit a big thumbs down - on the theory that one of them at least is a known associate of wingnuts on the Right.
This is encouraging to those of who never join anything and don't know anybody, maybe we'll be the only ones left to be judges in the end.
Oops, too late, I'm already associated with this group. (By the way, scroll down and read the first comment below the ODBA picture, what's that all about?)
This is encouraging to those of who never join anything and don't know anybody, maybe we'll be the only ones left to be judges in the end.
Oops, too late, I'm already associated with this group. (By the way, scroll down and read the first comment below the ODBA picture, what's that all about?)
Monday, September 10, 2007
On the late Ben Gardner
The whole time I've been a lawyer, Jim Elliott has told me stories about his friends, including one in particular named Ben Gardner from Martinsville.
Stories about him are in today's Martinsville paper and yesterday's paper, and this piece from the Danville paper reproduced on the law firm's website.
He had the sailing column on Roanoke.com, and could write about whatever he wanted there, such as this. If you root around the website you can also find this story by Mark Taylor about having the last sail of the season with Ben Gardner and crew.
Stories about him are in today's Martinsville paper and yesterday's paper, and this piece from the Danville paper reproduced on the law firm's website.
He had the sailing column on Roanoke.com, and could write about whatever he wanted there, such as this. If you root around the website you can also find this story by Mark Taylor about having the last sail of the season with Ben Gardner and crew.
Leftovers
From last week:
The Joel Bieber blog has this post on the case of illegal use of a musical device in Portsmouth, involving ice cream trucks - which reminds of another case, the one with the preacher singing too loud in his case.
On the farm in Blacksburg, the scientists are converting poultry litter into fuel.
This incredibly interesting article deals with funky predictors that defy the experts, and the resulting decline of expert discretion, against the background of how Virginia predicts which sex offenders need to be committed, post-incarceration. Evidently, the Commonwealth uses some scoring system to big the worst offenders:
"You see, Virginia’s version of the SVPA contained a super-crunching innovation. The statute included a “tripwire” that automatically sets the commitment process in motion if a super-crunching algorithm predicts that the inmate has a high risk of sexual offence recidivism. Under the statute, commissioners of the Virginia Department of Corrections were directed to review for possible commitment all prisoners about to be released who “receive a score of four or more on the Rapid Risk Assessment for Sexual Offender Recidivism”. The Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR, and pronounced “razor”) is a points system based on a regression analysis of male offenders in Canada. A score of four or more on the RRASOR translates into a prediction that the inmate, if released, would in the next 10 years have a 55 per cent chance of committing another sex offence."
And, last, someone sent me this link to a website with some rather downhome constitutional arguments, on the topic of whether the Clean Water Act preempts Virginia's Dillon Rule, as regards the regulation of biosolids as fertilizer - that describes the history of litigation over anti-biosolid ordinances, in state and federal court in Virginia. It is interesting to me in part because of its characterization of the Bristol fiber case, in which I was a more than interested spectator. (One point omitted is that the Supreme Court eventually ruled in the Missouri case that Judge Jones got it wrong on the preemption issue.) In the Bristol case, we had to deal with making the claim, can a Virginia city have standing to sue the Commonwealth to enforce federal rights?
On that point, this is part of what we argued:
"There can be no doubt that there are constitutional constraints on the states’ regulation of local government. See Romer v. Evans, 517 U.S. 620, 626, 629-31 (1996) (upholding Equal Protection challenge brought by municipalities and others against a state law prohibiting municipalities from adopting laws designed to protect homosexual persons from discrimination); Lawrence County v. Lead-Deadwood School District, 469 U.S. 256, 268-69 (1985) (upholding school district’s Supremacy Clause challenge to state law requiring distribution of federal funds received by local school district); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) (upholding school district’s challenge to state law prohibiting school districts from using mandatory busing to achieve racial integration); Board of Education v. Allen, 392 U.S. 236 (1968) (upholding school district’s attack on state statute requiring school districts to supply books to parochial schools). Where the interests of state and local government diverge on constitutional issues, local government meets the requirements for standing. In particular, local government has standing to bring a Supremacy Clause challenge to state statutes limiting local government in violation of federal law.
“Courts that have faced suits based on federal statutes . . . have concluded that subdivisions do have standing to sue the state.” 13A WRIGHT, MILLER, AND COOPER, FED. PRAC. & PROC. JURIS. 2d § 3531.11. See Branson School District RE-82 v. Romer, 161 F.3d 619, 628-30 (10th Cir. 1998), cert. denied, 526 U.S. 1068 (1999) (“A political subdivision has standing to sue its political parent on a Supremacy Clause claim”); Rogers v. Brockette, 588 F.2d 1057, 1067-1071 (5th Cir.), cert. denied, 444 U.S. 827 (1979) (local school board has standing to bring action against state and others challenging constitutionality of state statute which required certain school districts to participate in subsidized breakfast program); Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 893 F. Supp. 301, 315 (D.N.J. 1995) (“municipalities may assert claims against the creating state under the Supremacy Clause”); San Diego Unified Port District v. Gianturco, 457 F. Supp 283, 289-290 (S.D. Cal. 1978), aff’d on other grounds, 651 F.2d 1306, 1309 n.7 (9th Cir. 1981) (“If the Supremacy Clause is to be effective in achieving its purpose, its dictates must be enforceable by political subdivisions of states as well as by individuals”). “Decisions ruling that state-created municipalities or other government districts lack Fourteenth Amendment rights against the states creating them do not apply to suits brought to challenge state activities under the Supremacy Clause on grounds of preemption by federal law.” 13A WRIGHT, MILLER, AND COOPER, supra, § 3531.11 at n.55. “[No] Supreme Court case has held that a political subdivision is barred from asserting the structural protections of the Supremacy Clause of Article VI in a suit against its creating state.” Branson School Dist. RE-82, 161 F.3d at 629.
Even under other provisions of the Constitution, standing for a political subdivision might be found. See Washington, 458 U.S. at 487 n.31 (upholding attorneys’ fee award to local school board against state; “[w]hile appellants suggest that it is incongruous for a State to pay attorney’s fees to one of its school boards, it seems no less incongruous that a local board would feel the need to sue the State for a violation of the Fourteenth Amendment”); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 449 U.S. 1039, 1041-42 (1980) (White, J., dissenting from denial of certiorari) (arguing that denial of political subdivision standing was “inconsistent” with the Court’s holding in Board of Education v. Allen); City of Charleston v. Public Service Commission of West Virginia, 57 F.3d 385, 389-90 (4th Cir.), cert. denied, 516 U.S. 974 (1995) (in Contract Clause case, “whether the cities have standing to bring this suit is unclear”); Amato v. Wilentz, 952 F.2d 742, 755 (3d Cir. 1991) (“Judicial support for [rule against standing] may be waning with time”); School Bd. of the City of Richmond, Va. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987) (upholding standing of school district of the City of Richmond in appeal against the Commonwealth in part “because of the direct economic injury it has suffered as a result of the state defendants’ unconstitutional conduct”); Benjamin v. Malcolm, 803 F.2d 46, 54 (2d Cir. 1986), cert. denied, 480 U.S. 910 (1987) (city has standing for third-party claim against state as to claims based on prison overcrowding); United States v. Alabama, 791 F.2d 1450, 1455 (11th Cir. 1986), cert. denied, 475 U.S. 1085 (1987) (citing Rogers, there is no per se rule against municipality suits in the Eleventh Circuit); South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 504-05 (6th Cir. 1986) (“There may be occasions in which a political subdivision is not prevented, by virtue of its status as a subdivision of the state, from challenging the constitutionality of state legislation”); Akron Board of Education v. State Board of Education of Ohio, 490 F.2d 1285 (6th Cir.), cert. denied, 417 U.S. 932 (1974) (Fourteenth Amendment claim of local board against state)."
Finally, on judicial selection, the appointment of judges (such as we do in Virginia) is taking a beating lately. This article from the K.C. Star describes the furor over the "Missouri" plan right there in Missouri, while this post describes a study that says appointed judges are no better than elected judges (even though they write more).
The Joel Bieber blog has this post on the case of illegal use of a musical device in Portsmouth, involving ice cream trucks - which reminds of another case, the one with the preacher singing too loud in his case.
On the farm in Blacksburg, the scientists are converting poultry litter into fuel.
This incredibly interesting article deals with funky predictors that defy the experts, and the resulting decline of expert discretion, against the background of how Virginia predicts which sex offenders need to be committed, post-incarceration. Evidently, the Commonwealth uses some scoring system to big the worst offenders:
"You see, Virginia’s version of the SVPA contained a super-crunching innovation. The statute included a “tripwire” that automatically sets the commitment process in motion if a super-crunching algorithm predicts that the inmate has a high risk of sexual offence recidivism. Under the statute, commissioners of the Virginia Department of Corrections were directed to review for possible commitment all prisoners about to be released who “receive a score of four or more on the Rapid Risk Assessment for Sexual Offender Recidivism”. The Rapid Risk Assessment for Sexual Offender Recidivism (RRASOR, and pronounced “razor”) is a points system based on a regression analysis of male offenders in Canada. A score of four or more on the RRASOR translates into a prediction that the inmate, if released, would in the next 10 years have a 55 per cent chance of committing another sex offence."
And, last, someone sent me this link to a website with some rather downhome constitutional arguments, on the topic of whether the Clean Water Act preempts Virginia's Dillon Rule, as regards the regulation of biosolids as fertilizer - that describes the history of litigation over anti-biosolid ordinances, in state and federal court in Virginia. It is interesting to me in part because of its characterization of the Bristol fiber case, in which I was a more than interested spectator. (One point omitted is that the Supreme Court eventually ruled in the Missouri case that Judge Jones got it wrong on the preemption issue.) In the Bristol case, we had to deal with making the claim, can a Virginia city have standing to sue the Commonwealth to enforce federal rights?
On that point, this is part of what we argued:
"There can be no doubt that there are constitutional constraints on the states’ regulation of local government. See Romer v. Evans, 517 U.S. 620, 626, 629-31 (1996) (upholding Equal Protection challenge brought by municipalities and others against a state law prohibiting municipalities from adopting laws designed to protect homosexual persons from discrimination); Lawrence County v. Lead-Deadwood School District, 469 U.S. 256, 268-69 (1985) (upholding school district’s Supremacy Clause challenge to state law requiring distribution of federal funds received by local school district); Washington v. Seattle School Dist. No. 1, 458 U.S. 457 (1982) (upholding school district’s challenge to state law prohibiting school districts from using mandatory busing to achieve racial integration); Board of Education v. Allen, 392 U.S. 236 (1968) (upholding school district’s attack on state statute requiring school districts to supply books to parochial schools). Where the interests of state and local government diverge on constitutional issues, local government meets the requirements for standing. In particular, local government has standing to bring a Supremacy Clause challenge to state statutes limiting local government in violation of federal law.
“Courts that have faced suits based on federal statutes . . . have concluded that subdivisions do have standing to sue the state.” 13A WRIGHT, MILLER, AND COOPER, FED. PRAC. & PROC. JURIS. 2d § 3531.11. See Branson School District RE-82 v. Romer, 161 F.3d 619, 628-30 (10th Cir. 1998), cert. denied, 526 U.S. 1068 (1999) (“A political subdivision has standing to sue its political parent on a Supremacy Clause claim”); Rogers v. Brockette, 588 F.2d 1057, 1067-1071 (5th Cir.), cert. denied, 444 U.S. 827 (1979) (local school board has standing to bring action against state and others challenging constitutionality of state statute which required certain school districts to participate in subsidized breakfast program); Atlantic Coast Demolition & Recycling, Inc. v. Board of Chosen Freeholders of Atlantic County, 893 F. Supp. 301, 315 (D.N.J. 1995) (“municipalities may assert claims against the creating state under the Supremacy Clause”); San Diego Unified Port District v. Gianturco, 457 F. Supp 283, 289-290 (S.D. Cal. 1978), aff’d on other grounds, 651 F.2d 1306, 1309 n.7 (9th Cir. 1981) (“If the Supremacy Clause is to be effective in achieving its purpose, its dictates must be enforceable by political subdivisions of states as well as by individuals”). “Decisions ruling that state-created municipalities or other government districts lack Fourteenth Amendment rights against the states creating them do not apply to suits brought to challenge state activities under the Supremacy Clause on grounds of preemption by federal law.” 13A WRIGHT, MILLER, AND COOPER, supra, § 3531.11 at n.55. “[No] Supreme Court case has held that a political subdivision is barred from asserting the structural protections of the Supremacy Clause of Article VI in a suit against its creating state.” Branson School Dist. RE-82, 161 F.3d at 629.
Even under other provisions of the Constitution, standing for a political subdivision might be found. See Washington, 458 U.S. at 487 n.31 (upholding attorneys’ fee award to local school board against state; “[w]hile appellants suggest that it is incongruous for a State to pay attorney’s fees to one of its school boards, it seems no less incongruous that a local board would feel the need to sue the State for a violation of the Fourteenth Amendment”); City of South Lake Tahoe v. California Tahoe Regional Planning Agency, 449 U.S. 1039, 1041-42 (1980) (White, J., dissenting from denial of certiorari) (arguing that denial of political subdivision standing was “inconsistent” with the Court’s holding in Board of Education v. Allen); City of Charleston v. Public Service Commission of West Virginia, 57 F.3d 385, 389-90 (4th Cir.), cert. denied, 516 U.S. 974 (1995) (in Contract Clause case, “whether the cities have standing to bring this suit is unclear”); Amato v. Wilentz, 952 F.2d 742, 755 (3d Cir. 1991) (“Judicial support for [rule against standing] may be waning with time”); School Bd. of the City of Richmond, Va. v. Baliles, 829 F.2d 1308, 1311 (4th Cir. 1987) (upholding standing of school district of the City of Richmond in appeal against the Commonwealth in part “because of the direct economic injury it has suffered as a result of the state defendants’ unconstitutional conduct”); Benjamin v. Malcolm, 803 F.2d 46, 54 (2d Cir. 1986), cert. denied, 480 U.S. 910 (1987) (city has standing for third-party claim against state as to claims based on prison overcrowding); United States v. Alabama, 791 F.2d 1450, 1455 (11th Cir. 1986), cert. denied, 475 U.S. 1085 (1987) (citing Rogers, there is no per se rule against municipality suits in the Eleventh Circuit); South Macomb Disposal Authority v. Township of Washington, 790 F.2d 500, 504-05 (6th Cir. 1986) (“There may be occasions in which a political subdivision is not prevented, by virtue of its status as a subdivision of the state, from challenging the constitutionality of state legislation”); Akron Board of Education v. State Board of Education of Ohio, 490 F.2d 1285 (6th Cir.), cert. denied, 417 U.S. 932 (1974) (Fourteenth Amendment claim of local board against state)."
Finally, on judicial selection, the appointment of judges (such as we do in Virginia) is taking a beating lately. This article from the K.C. Star describes the furor over the "Missouri" plan right there in Missouri, while this post describes a study that says appointed judges are no better than elected judges (even though they write more).
Subscribe to:
Posts (Atom)