In federal court, you begin with the rule of Harrison v. Westinghouse Savannah River Co., 176 F.3d 776 (4th Cir. 1999), in which the Court of Appeals stated that “the ‘circumstances’ required to be pled with particularity under Rule 9(b) are ‘the time, place, and contents of the false representations, as well as the identity of the person making the misrepresentation and what he obtained thereby.’” 176 F.3d at 784. In pleading fraud against multiple defendants, the plaintiff “must identify, with particularity, each individual defendant’s culpable conduct; defendants cannot be grouped ‘together without specif[ication of] which defendant committed which wrong.’” Arnlund v. Smith, 210 F. Supp.2d 755, 760 (E.D. Va. 2002). Compare Juntti v. Prudential-Bache Securities, Inc., 1993 WL 138523 at *2 (4th Cir.) (“It is not sufficient to argue that ‘[e]ach count . . . incorporates the factual allegations of the Complaint, which specify each defendant’s individual conduct’”); Adams v. NVR Homes, Inc., 193 F.R.D. 243, 251 (D. Md. 2000) (“where there are multiple defendants, plaintiffs must, where the gravamen of the claim is fraud, allege all claims with particularity as to each of the defendants”). In addition, the plaintiff must plead facts showing reliance. See Kline v. Nationsbank, 886 F. Supp. 1285, 1295-96 (E.D. Va. 1995) (granting motion to dismiss fraud claim for failure to comply with Rule 9(b) where plaintiff generally alleged reliance without stating any facts about how she relied on the particular representation). Non-compliance with Rule 9(b) is grounds for dismissal under Rule 12(b)(6). See Harrison, 176 F.3d at 783 n.5; Lasercomb America, Inc. v. Reynolds, 911 F.2d 970, 980 (4th Cir. 1990) (“a complaint which fails to specifically allege the time, place and nature of the fraud is subject to dismissal on a Rule 12(b)(6) motion”).
In Virginia state court, “[w]here fraud is relied on, the pleading must show specifically in what the fraud consists, so that the defendant may have the opportunity of shaping his defence accordingly, and since fraud must be clearly proved it must be distinctly stated.” Mortarino v. Consultant Engineering Services, 251 Va. 289, 295, 467 S.E.2d 778, 782 (1996). “[T]he rule is well established that fraud must be clearly alleged in order that evidence intended to prove fraud may be admitted.” Brooks v. Bankson, 248 Va. 197, 206, 445 S.E.2d 473 (1994) (citing cases). Because of the ease with which a plaintiff might otherwise seek to expand an ordinary contract or negligence claim into fraud with the addition of a few words in a pleading, Virginia law requires that “[a]s in federal practice, charges of fraud must be pleaded with ‘particularity.’” Middleditch & Sinclair, Virginia Civil Procedure 385 (2d ed. 1992) (citing cases).
Isn't that the law, or did I just make it all up? Sometimes I wonder - just when I think I've got one little corner figured out, someone says blah-blah-blah, that's not the law.
Tuesday, October 23, 2007
Monday, October 22, 2007
Some links
Here from the Newport News paper is a light-hearted report on the swearing in of Justice Goodwyn.
This story from the Norfolk paper tells that the anti-ice cream truck ordinance in Portsmouth has been deemed unconstitutional.
U.Va. reports here that Judge Wilkinson's daughter got a clerkship with Chief Justice Roberts.
Here's the New York Times take on the chaos among the parts of the government of the City of Richmond.
Last week, the Bristol paper had this obituary for Circuit Court Judge Aubrey Matthews, which said in part: "Judge Matthews received both his undergraduate and law degrees from Washington and Lee University. This education was separated by his Naval service in the 88th SeaBees Battalion during the South Pacific campaign of World War II. He practiced general law in Marion from 1948 to 1965, during which time he also served four years as Smyth County's commonwealth attorney. He was appointed to the 28th Circuit Court bench in 1965 and served until his retirement in 1986. He was the only Smyth Countian to be appointed as a circuit court judge in the twentieth century."
Judge Welsh told me that Judge Matthews never liked to write opinions.
This story from the Norfolk paper tells that the anti-ice cream truck ordinance in Portsmouth has been deemed unconstitutional.
U.Va. reports here that Judge Wilkinson's daughter got a clerkship with Chief Justice Roberts.
Here's the New York Times take on the chaos among the parts of the government of the City of Richmond.
Last week, the Bristol paper had this obituary for Circuit Court Judge Aubrey Matthews, which said in part: "Judge Matthews received both his undergraduate and law degrees from Washington and Lee University. This education was separated by his Naval service in the 88th SeaBees Battalion during the South Pacific campaign of World War II. He practiced general law in Marion from 1948 to 1965, during which time he also served four years as Smyth County's commonwealth attorney. He was appointed to the 28th Circuit Court bench in 1965 and served until his retirement in 1986. He was the only Smyth Countian to be appointed as a circuit court judge in the twentieth century."
Judge Welsh told me that Judge Matthews never liked to write opinions.
U.Va. law alumni mostly likely to offer tricky clues
I never knew it, but it says here that famed crossword puzzle maker Will Shortz is an alumnus of the law school of the University of Virginia.
A visit to SWAC Country
I went to Staunton last weekend for the meeting of the board of governors of The Virginia Bar Association.
At the dinner on Friday night among the locals in attendance was Magistrate Judge James G. Welsh, who I had not met before. He is an excellent fellow, who seems to know personally or have known or have heard about every lawyer of note in the Western District of Virginia since 1950, or maybe 1900.
His wife told this story, of Judge Welsh trying a case before Judge Widener when Judge Widener was on the District Court (which was in period from 1969 to 1972):
Welsh was an AUSA, and in this particular trial, whenever one of the witnesses gave some particularly useful testimony, he would say to the witness, "I'm sorry, I didn't hear that, could you repeat what you just said?" Judge Widener was not fooled by this technique, and declared that "if the United States attorney loses his hearing one more time, he will be held in contempt."
I did not tell Judge Welsh of my favorite story ever told by Harrisonburg lawyer Cathleen Welsh, whom I suppose is no relation to the judge, either.
Also at dinner I sat with the fellow who is executive director of Blue Ridge Legal Aid, John Whitfield and his wife.
I did not see the SWAC Girl in my short trip to Staunton, but noticed that she has been posting some excellent photographs.
At the dinner on Friday night among the locals in attendance was Magistrate Judge James G. Welsh, who I had not met before. He is an excellent fellow, who seems to know personally or have known or have heard about every lawyer of note in the Western District of Virginia since 1950, or maybe 1900.
His wife told this story, of Judge Welsh trying a case before Judge Widener when Judge Widener was on the District Court (which was in period from 1969 to 1972):
Welsh was an AUSA, and in this particular trial, whenever one of the witnesses gave some particularly useful testimony, he would say to the witness, "I'm sorry, I didn't hear that, could you repeat what you just said?" Judge Widener was not fooled by this technique, and declared that "if the United States attorney loses his hearing one more time, he will be held in contempt."
I did not tell Judge Welsh of my favorite story ever told by Harrisonburg lawyer Cathleen Welsh, whom I suppose is no relation to the judge, either.
Also at dinner I sat with the fellow who is executive director of Blue Ridge Legal Aid, John Whitfield and his wife.
I did not see the SWAC Girl in my short trip to Staunton, but noticed that she has been posting some excellent photographs.
Thursday, October 18, 2007
On Jason Ray, revisited
On ESPN, they are telling the powerful story of the fellow who was the Tar Heel mascot, and lives on through others.
On being a Minor Wikipediast
I was amused by my recent additions to Wikipedia, until I read of the prior case of William Chester Minor - physician, murderer, lunatic - and extensive contributor to the Oxford English Dictionary.
Wednesday, October 17, 2007
Arbitrator gets to decide choice of law and venue
In Burress v. John Deere Constr. & Forestry Co., Judge Wilson ruled in the matter of a dispute subject to arbitration that the arbitrator would get to decide which state's law applies and where the arbitration would be held.
I'm not sure about that last part - where the arbitration is held could have osme effect on where subsequent court action to enforce or overturn the award has to be brought. 9 U.S.C. 9 ("If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made."). Does the arbitrator get to decide where his award will be reviewed? Perhaps so.
I'm not sure about that last part - where the arbitration is held could have osme effect on where subsequent court action to enforce or overturn the award has to be brought. 9 U.S.C. 9 ("If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made."). Does the arbitrator get to decide where his award will be reviewed? Perhaps so.
On hobbling the press
If a picture is worth 1,000 words, then this editorial in the Bristol paper, criticizing Judge Kirksey's gag orders in high-profile murder cases, makes me wonder: since the newspaper frequently can't get the words right, why not let them have a few pictures?
Tuesday, October 16, 2007
On Grisham
In Charlotteville over the weekend, both The Hook and C-Ville Weekly had articles about a defamation suit brought in federal court in Oklahoma against John Grisham by a prosecutor and investigator on the wrong side of the case against The Innocent Man.
Maybe he said "oom" and the officer was listening upside-down
From the Court of Appeals -
"When Jenkins kissed the baggie, waved it around, and pronounced a celebratory 'Woo,' he hardly displayed a level of merriment appropriate for a thimble-full of flour, baking soda, or salt."
Judge Kelsey, in Com. v. Jenkins.
"When Jenkins kissed the baggie, waved it around, and pronounced a celebratory 'Woo,' he hardly displayed a level of merriment appropriate for a thimble-full of flour, baking soda, or salt."
Judge Kelsey, in Com. v. Jenkins.
Monday, October 15, 2007
Judges of the W.D. Va.
Now on Wikipedia -
The first judge of the W.D. Va was John G. Jackson, who married a sister of Dolley Madison, got shot in a duel while he was in Congress, and served on the commission that met at Rockfish Gap to decide where to locate the University of Virginia. He was appointed by James Monroe in 1819.
The second judge of the W.D. Va. - Philip Pendleton - was also on the Rockfish Gap commission - and voted for Lexington. Pendleton and his successor Alexander Caldwell were both recess appointments of John Quincy Adams. Jackson, Pendleton, and Caldwell were all from counties that are now part of West Virginia.
The fourth judge of the W.D. Va., Isaac Pennybacker, got a recess appointment from Martin Van Buren at age 34, resigned from the bench and became a U.S. Senator, and was named by James K. Polk to the very first Board of Regents of the Smithsonian Institution.
The fifth judge of the W.D. Va. was John White Brockenbrough, who started the law school at Lexington, and who opposed secession but quit his judgeship to join the Confederacy. After the war, Brockenbrough was the one who put to Robert E. Lee the idea of joining up with Washington College. Brockenbrough's successor, John Jay Jackson, Jr., the grandson of John G. Jackson, was appointed by Abraham Lincoln and held court in the western Union counties until they became West Virginia, then served on as district court judge in West Virginia for another forty years, becoming known as the "Iron Judge."
During the Civil War and after, there was no Western District of Virginia. The federal courts were consolidated into the District of Virginia, and the only judge was the abolitionist John C. Underwood. When the Western District was recreated, the next judge was Alexander Rives, who became a federal judge after he was not re-elected to the Virginia Supreme Court and lost an election for Congress. In the Congressional race, Rives got his opponent's civil rights restored without charging the usual fee, and bragged about it until the opponent paid the fee to shut him up on that issue.
After Rives retired, Judge Robert W. Hughes of the Eastern District, who had a home in Abingdon, came and heard cases in the Western District for a while. Hughes had gone over from being a rabid secessionist to becoming a Republican, a transformation that led to a duel with the writer of a newspaper editorial against him. Unlike Judge Jackson, Hughes walked away from his duel, having shot the newspaperman.
Rives was eventually succeeded by Judge John Paul. Judge Paul resigned his seat in Congress to take his judgeship, during the pendency of what would become a successful challenge to the outcome of the election.
To replace Judge Paul, Theodore Roosevelt gave a recess appointment to Henry Clay McDowell, a great-grandson of Henry Clay.
Of Judge McDowell, Judge Emory Widener told this story:
"Judge Henry Clay McDowell was presiding and, after a strenuous trial of several days, directed a verdict in favor of the defendant. The lawyer representing the plaintiff was Dan Trigg, a giant of the bar and the leading lawyer in Western Virginia. Judge McDowell bent over to tie his shoe, and the bench, at that time being elevated some two feet above the floor of the courtroom, screened him from the sight of everyone in the room. “Damn a federal judge anyhow,” Mr. Trigg exclaimed, being audible to all. Judge McDowell, of course, heard the remark, but remained stooped over and left the courtroom by a door just behind the judge's chair so that no one knew he was in the room. He later summoned all the other lawyers in the courtroom to his chambers and said that he had heard Mr. Trigg's remark. He asked the lawyers if anyone in the room knew that he had heard it. When the lawyers advised him that no one had, he stated the rule that lawyers had a constitutional right to cuss the judge and, since Mr. Trigg didn't know he had been heard, he was not going to be fined." "Remembering the Fourth Circuit Judges: A History from 1941 to 1998," 55 Wash. & Lee L. Rev. 471, 473 (Spring 1998).
McDowell practiced law for a while in Big Stone Gap and made the acquaintance of the author John Fox, Jr., who included him as a character in one of his books. McDowell served for thirty years, and his replacement, John Paul, Jr., was the son of his predecessor.
The second Judge Paul graduated from VMI, soldiered in Europe in World War I, and attended the Republican National Conventions in 1912, 1916, 1920, and 1924, before he was made U.S. Attorney in 1929 and District Judge in 1932. He was the last of the W.D. Va. judges to work alone. A second position on the W.D. Va. was created, but the first nominee didn't last long - the Senate rejected Floyd Roberts from Bristol, another recess appointee, by a vote of 72-9.
Roberts' nomination became a point of contention between Franklin Roosevelt and Senator Carter Glass from Virginia, about whether Roosevelt should consult with the Senators on federal positions in the Commonwealth. When Glass complained about reports that Roosevelt had promised veto power to Virginia's Governor James Price, and that Glass had not been consulted over the nomination of Roberts, Roosevelt responded that "Senator Glass that he had not been consulted over Roberts' selection, Roosevelt responded "that he was happy to consult Glass, but reserved the right to consult others, including, if he wished, 'Nancy Astor, the Duchess of Windsor, the WPA, a Virginia moonshiner, Governor Price or Charlie McCarthy.'" Glass and the Senate were unamused.
Roberts was succeeded by Armistead Dobie, who went on to the Fourth Circuit shortly thereafter, and among other things, wrote his own history of the judges of the District. Hon. Armistead M. Dobie, "Federal District Judges in Virginia before the Civil War," 12 F.R.D. 451 (1951,1952).
The first judge of the W.D. Va was John G. Jackson, who married a sister of Dolley Madison, got shot in a duel while he was in Congress, and served on the commission that met at Rockfish Gap to decide where to locate the University of Virginia. He was appointed by James Monroe in 1819.
The second judge of the W.D. Va. - Philip Pendleton - was also on the Rockfish Gap commission - and voted for Lexington. Pendleton and his successor Alexander Caldwell were both recess appointments of John Quincy Adams. Jackson, Pendleton, and Caldwell were all from counties that are now part of West Virginia.
The fourth judge of the W.D. Va., Isaac Pennybacker, got a recess appointment from Martin Van Buren at age 34, resigned from the bench and became a U.S. Senator, and was named by James K. Polk to the very first Board of Regents of the Smithsonian Institution.
The fifth judge of the W.D. Va. was John White Brockenbrough, who started the law school at Lexington, and who opposed secession but quit his judgeship to join the Confederacy. After the war, Brockenbrough was the one who put to Robert E. Lee the idea of joining up with Washington College. Brockenbrough's successor, John Jay Jackson, Jr., the grandson of John G. Jackson, was appointed by Abraham Lincoln and held court in the western Union counties until they became West Virginia, then served on as district court judge in West Virginia for another forty years, becoming known as the "Iron Judge."
During the Civil War and after, there was no Western District of Virginia. The federal courts were consolidated into the District of Virginia, and the only judge was the abolitionist John C. Underwood. When the Western District was recreated, the next judge was Alexander Rives, who became a federal judge after he was not re-elected to the Virginia Supreme Court and lost an election for Congress. In the Congressional race, Rives got his opponent's civil rights restored without charging the usual fee, and bragged about it until the opponent paid the fee to shut him up on that issue.
After Rives retired, Judge Robert W. Hughes of the Eastern District, who had a home in Abingdon, came and heard cases in the Western District for a while. Hughes had gone over from being a rabid secessionist to becoming a Republican, a transformation that led to a duel with the writer of a newspaper editorial against him. Unlike Judge Jackson, Hughes walked away from his duel, having shot the newspaperman.
Rives was eventually succeeded by Judge John Paul. Judge Paul resigned his seat in Congress to take his judgeship, during the pendency of what would become a successful challenge to the outcome of the election.
To replace Judge Paul, Theodore Roosevelt gave a recess appointment to Henry Clay McDowell, a great-grandson of Henry Clay.
Of Judge McDowell, Judge Emory Widener told this story:
"Judge Henry Clay McDowell was presiding and, after a strenuous trial of several days, directed a verdict in favor of the defendant. The lawyer representing the plaintiff was Dan Trigg, a giant of the bar and the leading lawyer in Western Virginia. Judge McDowell bent over to tie his shoe, and the bench, at that time being elevated some two feet above the floor of the courtroom, screened him from the sight of everyone in the room. “Damn a federal judge anyhow,” Mr. Trigg exclaimed, being audible to all. Judge McDowell, of course, heard the remark, but remained stooped over and left the courtroom by a door just behind the judge's chair so that no one knew he was in the room. He later summoned all the other lawyers in the courtroom to his chambers and said that he had heard Mr. Trigg's remark. He asked the lawyers if anyone in the room knew that he had heard it. When the lawyers advised him that no one had, he stated the rule that lawyers had a constitutional right to cuss the judge and, since Mr. Trigg didn't know he had been heard, he was not going to be fined." "Remembering the Fourth Circuit Judges: A History from 1941 to 1998," 55 Wash. & Lee L. Rev. 471, 473 (Spring 1998).
McDowell practiced law for a while in Big Stone Gap and made the acquaintance of the author John Fox, Jr., who included him as a character in one of his books. McDowell served for thirty years, and his replacement, John Paul, Jr., was the son of his predecessor.
The second Judge Paul graduated from VMI, soldiered in Europe in World War I, and attended the Republican National Conventions in 1912, 1916, 1920, and 1924, before he was made U.S. Attorney in 1929 and District Judge in 1932. He was the last of the W.D. Va. judges to work alone. A second position on the W.D. Va. was created, but the first nominee didn't last long - the Senate rejected Floyd Roberts from Bristol, another recess appointee, by a vote of 72-9.
Roberts' nomination became a point of contention between Franklin Roosevelt and Senator Carter Glass from Virginia, about whether Roosevelt should consult with the Senators on federal positions in the Commonwealth. When Glass complained about reports that Roosevelt had promised veto power to Virginia's Governor James Price, and that Glass had not been consulted over the nomination of Roberts, Roosevelt responded that "Senator Glass that he had not been consulted over Roberts' selection, Roosevelt responded "that he was happy to consult Glass, but reserved the right to consult others, including, if he wished, 'Nancy Astor, the Duchess of Windsor, the WPA, a Virginia moonshiner, Governor Price or Charlie McCarthy.'" Glass and the Senate were unamused.
Roberts was succeeded by Armistead Dobie, who went on to the Fourth Circuit shortly thereafter, and among other things, wrote his own history of the judges of the District. Hon. Armistead M. Dobie, "Federal District Judges in Virginia before the Civil War," 12 F.R.D. 451 (1951,1952).
Fourth Circuit affirms rulings in Novell v. Microsoft anti-trust case
In the case of Novell v. Microsoft, the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Duncan, affirmed the trial court rulings granting dismissal of some but not all of Novell's anti-trust claims in MDL litigation against Microsoft.
The two claims that were not dismissed related to operating systems; the other claims, held to be time-barred, related to word processing and spreadsheet software programs.
The Court overruled Microsoft's argument that Novell lacked standing for anti-trust remedies related to operating systems, while observing: "We do not view our decision with respect to Novell as unduly expanding the universe of private antitrust plaintiffs." I guess that remains to be seen, although perhaps what the ruling on standing giveth, the statute of limitations takes away for the losers in the computer business of the 1990s. On limitations, the Court held that Novell's claims were not tolled by the government anti-trust actions brought against Microsoft by the U.S. Department of Justice and other governments.
The two claims that were not dismissed related to operating systems; the other claims, held to be time-barred, related to word processing and spreadsheet software programs.
The Court overruled Microsoft's argument that Novell lacked standing for anti-trust remedies related to operating systems, while observing: "We do not view our decision with respect to Novell as unduly expanding the universe of private antitrust plaintiffs." I guess that remains to be seen, although perhaps what the ruling on standing giveth, the statute of limitations takes away for the losers in the computer business of the 1990s. On limitations, the Court held that Novell's claims were not tolled by the government anti-trust actions brought against Microsoft by the U.S. Department of Justice and other governments.
Thursday, October 11, 2007
On Justice Goodwyn
I was out and about when the word came down that Governor Kaine has selected Circuit Court Judge S. Bernard Goodwyn to succeed Justice Lacy on the Virginia Supreme Court. Here is the press release from the Governor's office. The Attorney General released this statement supporting the confirmation of Goodwyn in the upcoming General Assembly session.
Here is a reprint of the article about him in the Norfolk paper when he was appointed to the District Court in 1995. Here is a similar article from when he was appointed to the Circuit Court in 1997. Here is yesterday's article by Warren Fiske, which notes: "Goodwyn was an honor student at Southampton County High School and quarterbacked the football team to a 1979 state championship, a 56-6 drubbing of Gate City High whose roster included Jerry Kilgore, the Republican nominee for governor in 2005. Goodwyn threw for two touchdowns and ran for one in the game." Before becoming a judge, Goodwyn was with the Willcox & Savage firm in Norfolk - the same firm as U.S. District Court Judge Walter Kelley.
Here is the article from the Washington Post, and here is a story from the Richmond paper.
Here is a reprint of the article about him in the Norfolk paper when he was appointed to the District Court in 1995. Here is a similar article from when he was appointed to the Circuit Court in 1997. Here is yesterday's article by Warren Fiske, which notes: "Goodwyn was an honor student at Southampton County High School and quarterbacked the football team to a 1979 state championship, a 56-6 drubbing of Gate City High whose roster included Jerry Kilgore, the Republican nominee for governor in 2005. Goodwyn threw for two touchdowns and ran for one in the game." Before becoming a judge, Goodwyn was with the Willcox & Savage firm in Norfolk - the same firm as U.S. District Court Judge Walter Kelley.
Here is the article from the Washington Post, and here is a story from the Richmond paper.
Monday, October 08, 2007
Wednesday, October 03, 2007
On getting barred from the 27th Circuit
The Roanoke Times reports here that Circuit Judge Showalter has "taken the unusual step of barring a Christiansburg lawyer from practicing law in his judicial circuit.."
Monday, October 01, 2007
District Court decision affirmed in Virginia open primary case
Today, in Miller v. Brown, the Fourth Circuit in an opinion by Senior Judge Wilkins, joined by Judge Duncan, affirmed in its entirety the prior decision by District Judge Henry Hudson in the open primary case, rejecting the issues raised by the plaintiffs and the election officials.
Tuesday, September 25, 2007
Didn't hear the last 2:00
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.
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.
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).
On Frosty Landon
This Bacon post tells of his retirement.
Whenever I see him out and about, I like to give him grieve over whatever is my latest FOIA snafu - it must be his fault, because he is Mr. FOIA.
Whenever I see him out and about, I like to give him grieve over whatever is my latest FOIA snafu - it must be his fault, because he is Mr. FOIA.
What the RedStaters are saying
Here (with 50+ comments) and here are posts at ConfirmThem on the nominations of Getchell and Matthews.
One commenter says:
"Why did Bush needlessly nominate someone not on the Warner/Webb approved list? Such foolishness! As we have already discussed, without Graham's support, Matthews is dead on arrival. Now Gretchell is dead on arrival. Oh, by the way, Conrad from North Carolina is also dead on arrival. As I have said before, maybe Bush is trying to generate an election issue in 2008. He must know perfectly well that Conrad, Gretchell and Matthews are nonconfirmable - all are very conservative white Southern males and we all know that the Dems hate those types! My only hope is that these Fourth Circuit three will make Keisler look like a liberal in the Dems' eyes and encourage his confirmation as a compromise."
Another says:
"This is just crazy. Why in the name of our sweet savior didn't Bush nominate Getchell a year ago? Either insanity, incompetence on an historic level or deliberate malfeasance."
One commenter says:
"Why did Bush needlessly nominate someone not on the Warner/Webb approved list? Such foolishness! As we have already discussed, without Graham's support, Matthews is dead on arrival. Now Gretchell is dead on arrival. Oh, by the way, Conrad from North Carolina is also dead on arrival. As I have said before, maybe Bush is trying to generate an election issue in 2008. He must know perfectly well that Conrad, Gretchell and Matthews are nonconfirmable - all are very conservative white Southern males and we all know that the Dems hate those types! My only hope is that these Fourth Circuit three will make Keisler look like a liberal in the Dems' eyes and encourage his confirmation as a compromise."
Another says:
"This is just crazy. Why in the name of our sweet savior didn't Bush nominate Getchell a year ago? Either insanity, incompetence on an historic level or deliberate malfeasance."
Sunday, September 09, 2007
On the Tennessee tax on illegal drugs
A while back, I had this post about the Tennessee tax on illegal drugs.
Now, a panel of the Tennessee Court of Appeals has ruled that the tax is unconstitutional, as reported here and discussed in this TalkLeft post.
The opinion in the case of Waters v. Chumley is here.
Once again, I look to Bill Hobbs for comment, and it sounds like now he thinks it is a bad idea.
By the way, Bill Hobbs has out a short book about Fred Thompson, titled Who is Fred Thompson? Earlier this year I went to a dinner and briefly Fred Thompson was there, and the woman standing next to me asked the same question. I told her as best I could, but I didn't think to charge her anything.
I wonder what is Fred Thompson's position on the taxation of illegal drugs. Evidently, he is taking questions from bloggers, or some of them, as noted here.
Now, a panel of the Tennessee Court of Appeals has ruled that the tax is unconstitutional, as reported here and discussed in this TalkLeft post.
The opinion in the case of Waters v. Chumley is here.
Once again, I look to Bill Hobbs for comment, and it sounds like now he thinks it is a bad idea.
By the way, Bill Hobbs has out a short book about Fred Thompson, titled Who is Fred Thompson? Earlier this year I went to a dinner and briefly Fred Thompson was there, and the woman standing next to me asked the same question. I told her as best I could, but I didn't think to charge her anything.
I wonder what is Fred Thompson's position on the taxation of illegal drugs. Evidently, he is taking questions from bloggers, or some of them, as noted here.
On books
Ray Ward has been reading Thomas Merton's The Seven Storey Mountain, which I have read at some time or another.
Or was it The Seven Pillars of Wisdom? I think I have read both.
The book I just read was a biography of James Smithson, whose bequest led to the creation of the Smithsonian. Before that, I read a collection of O. Henry stories, the two latest Gabriel Allon books by Daniel Sylva, and The Forest by Edward Rutherfurd.
Somehow, Dana picks the books, I just read them.
Or was it The Seven Pillars of Wisdom? I think I have read both.
The book I just read was a biography of James Smithson, whose bequest led to the creation of the Smithsonian. Before that, I read a collection of O. Henry stories, the two latest Gabriel Allon books by Daniel Sylva, and The Forest by Edward Rutherfurd.
Somehow, Dana picks the books, I just read them.
Lame DOJ take on net neutrality
This Concurring Opinions post debunks a public comment from the Antitrust Division of the Department of Justice on net neutrality.
The government says:
"The Department submits, however, that free market competition, unfettered by unnecessary governmental regulatory restraints, is the best way to foster innovation and development of the Internet. Free market competition drives scarce resources to their fullest and most efficient use, spurring businesses to invest in and sell as efficiently as possible the kinds and quality of goods and services that consumers desire. Past experience has demonstrated that, absent actual market failure, the operation of a free market is a far superior alternative to regulatory restraints."
That's great - if the government would act to force and enforce competition. If there really was competition, net neutrality would not be an issue.
Here's more from Techdirt: "Does the DOJ not realize that the market for broadband is already heavily regulated, which is why most consumers here only have one or two choices -- compared to other countries that have created more open markets on top of the infrastructure, allowing for competition, faster speeds and increased innovation?"
The government says:
"The Department submits, however, that free market competition, unfettered by unnecessary governmental regulatory restraints, is the best way to foster innovation and development of the Internet. Free market competition drives scarce resources to their fullest and most efficient use, spurring businesses to invest in and sell as efficiently as possible the kinds and quality of goods and services that consumers desire. Past experience has demonstrated that, absent actual market failure, the operation of a free market is a far superior alternative to regulatory restraints."
That's great - if the government would act to force and enforce competition. If there really was competition, net neutrality would not be an issue.
Here's more from Techdirt: "Does the DOJ not realize that the market for broadband is already heavily regulated, which is why most consumers here only have one or two choices -- compared to other countries that have created more open markets on top of the infrastructure, allowing for competition, faster speeds and increased innovation?"
On mountaintop removal
This article is summarized:
"This Comment examines the legal strategies and techniques utilized in a series of environmental lawsuits challenging mountaintop removal coal mining. This case study also explores the role that Public Justice plays in affecting positive change through public interest law. Many are unaware of both the devastation mountaintop removal coal mining causes in the Appalachians and the contributions of trial lawyers to public interest law. To shed light on both these issues, this Comment discusses the background of mountaintop removal coal mining and Public Justice, the history of litigation and legal strategies used to further the campaign against such devastating mining techniques, and the role of politics, policy, and publicity."
"This Comment examines the legal strategies and techniques utilized in a series of environmental lawsuits challenging mountaintop removal coal mining. This case study also explores the role that Public Justice plays in affecting positive change through public interest law. Many are unaware of both the devastation mountaintop removal coal mining causes in the Appalachians and the contributions of trial lawyers to public interest law. To shed light on both these issues, this Comment discusses the background of mountaintop removal coal mining and Public Justice, the history of litigation and legal strategies used to further the campaign against such devastating mining techniques, and the role of politics, policy, and publicity."
On sovereign immunity and the Virginia Tech victims
The Washington Post ran this article about how some law firm has been retained by some of the families of victims from the shootings at Virginia Tech.
Part of the discussion is whether the Commonwealth could rely on sovereign immunity, and the caps contained in the Virginia Tort Claims Act.
In "Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit," 43 A.L.R.4th 19 (1986 & Supp.), the authors wrote:
"To balance the public's right of action pursuant to such waiver of immunity with the government's need to protect public coffers from potentially devastating claims, several jurisdictions have adopted statutes and ordinances, often incorporated in waiver legislation, limiting the amounts or kinds of damages recoverable against government tortfeasors.[FN3] Courts have almost uniformly recognized that legislative bodies have the power to prescribe such limits, and that the limits prescribed are constitutionally valid (§§ 3-7, infra). Though they may abridge the remedies of victims of government, as opposed to private torts, damage limitation statutes or ordinances are almost unanimously viewed as having a rational basis in the government's need to provide for effective risk management (§ 3[a], infra), although one court has applied the strict scrutiny test in concluding that a statute limiting recovery to "economic losses" unconstitutionally deprived a government tort victim of a fundamental right.[FN4] In addition to repelling equal protection attacks on damage limitation laws, the courts have also consistently rejected arguments that such enactments violate due process (§ 4, infra), or that they abridge state constitutional guaranties of access to courts for redress of grievances (§ 5, infra), or impair vested rights (§ 6, infra). With respect to the latter arguments, the courts have reasoned that damage limitation statutes involve no denial of redress or impairment of rights where there was no right of action at all prior to waiver of governmental immunity, that a right to redress does not include a right to full compensation, and that the restriction of damages recoverable by victims of proprietary conduct is not objectionable where waiver legislation, by effectively abolishing proprietary-governmental analysis, broadens the class of persons entitled to relief."
The issue suggested by the discussion in the article is not the validity but the scope of the liability cap under the Virginia Tort Claims Act:
"Grenier argues that the state's immunity is not ironclad. He cites a provision of the state code that says a claimant can recover up to $100,000 "or the maximum limits of any liability policy maintained to insure against such negligence or other force if such policy is in force at the time of the act."
Virginal Tech does not have its own insurance. It is covered by the state Treasury Department's Division of Risk Management.
Virginia Solicitor General William E. Thro said he is confident that the courts would uphold the $100,000 cap. "Any ambiguities are construed in favor of the commonwealth," Thro said.
Grenier counters that he has not "found any case law that backs up the commonwealth's argument."
In fact, Grenier settled a wrongful death case with Virginia for $1.2 million in 2001 that involved a juvenile at a youth detention center.
In 2000, the state paid $750,000 to settle a suit brought by the daughter of a woman who was killed in 1997 when a balcony collapsed during the University of Virginia commencement ceremony. Several other relatives split separate settlements that totaled $790,000. Kilgore, who settled the University of Virginia case, said the state will have to quickly determine how broad its immunity is and then consider its options.
"Once the judge rules or is about to rule what your liability cap is or isn't . . . you have to quickly make strategic decisions about how to proceed," Kilgore said."
This BLT post says the lawyers are also working on a federal civil rights action. The state law of sovereign immunity has no application to a federal civil rights action; the state and its agencies cannot be sued in federal court because of the Eleventh Amendment, but state actors can be and are sued individually under 42 U.S.C. 1983 - but not for negligence, and in their individual capacities they have the defense of qualified immunity.
Part of the discussion is whether the Commonwealth could rely on sovereign immunity, and the caps contained in the Virginia Tort Claims Act.
In "Validity and construction of statute or ordinance limiting the kinds or amount of actual damages recoverable in tort action against governmental unit," 43 A.L.R.4th 19 (1986 & Supp.), the authors wrote:
"To balance the public's right of action pursuant to such waiver of immunity with the government's need to protect public coffers from potentially devastating claims, several jurisdictions have adopted statutes and ordinances, often incorporated in waiver legislation, limiting the amounts or kinds of damages recoverable against government tortfeasors.[FN3] Courts have almost uniformly recognized that legislative bodies have the power to prescribe such limits, and that the limits prescribed are constitutionally valid (§§ 3-7, infra). Though they may abridge the remedies of victims of government, as opposed to private torts, damage limitation statutes or ordinances are almost unanimously viewed as having a rational basis in the government's need to provide for effective risk management (§ 3[a], infra), although one court has applied the strict scrutiny test in concluding that a statute limiting recovery to "economic losses" unconstitutionally deprived a government tort victim of a fundamental right.[FN4] In addition to repelling equal protection attacks on damage limitation laws, the courts have also consistently rejected arguments that such enactments violate due process (§ 4, infra), or that they abridge state constitutional guaranties of access to courts for redress of grievances (§ 5, infra), or impair vested rights (§ 6, infra). With respect to the latter arguments, the courts have reasoned that damage limitation statutes involve no denial of redress or impairment of rights where there was no right of action at all prior to waiver of governmental immunity, that a right to redress does not include a right to full compensation, and that the restriction of damages recoverable by victims of proprietary conduct is not objectionable where waiver legislation, by effectively abolishing proprietary-governmental analysis, broadens the class of persons entitled to relief."
The issue suggested by the discussion in the article is not the validity but the scope of the liability cap under the Virginia Tort Claims Act:
"Grenier argues that the state's immunity is not ironclad. He cites a provision of the state code that says a claimant can recover up to $100,000 "or the maximum limits of any liability policy maintained to insure against such negligence or other force if such policy is in force at the time of the act."
Virginal Tech does not have its own insurance. It is covered by the state Treasury Department's Division of Risk Management.
Virginia Solicitor General William E. Thro said he is confident that the courts would uphold the $100,000 cap. "Any ambiguities are construed in favor of the commonwealth," Thro said.
Grenier counters that he has not "found any case law that backs up the commonwealth's argument."
In fact, Grenier settled a wrongful death case with Virginia for $1.2 million in 2001 that involved a juvenile at a youth detention center.
In 2000, the state paid $750,000 to settle a suit brought by the daughter of a woman who was killed in 1997 when a balcony collapsed during the University of Virginia commencement ceremony. Several other relatives split separate settlements that totaled $790,000. Kilgore, who settled the University of Virginia case, said the state will have to quickly determine how broad its immunity is and then consider its options.
"Once the judge rules or is about to rule what your liability cap is or isn't . . . you have to quickly make strategic decisions about how to proceed," Kilgore said."
This BLT post says the lawyers are also working on a federal civil rights action. The state law of sovereign immunity has no application to a federal civil rights action; the state and its agencies cannot be sued in federal court because of the Eleventh Amendment, but state actors can be and are sued individually under 42 U.S.C. 1983 - but not for negligence, and in their individual capacities they have the defense of qualified immunity.
On the new Fourth Circuit nominees
President Bush has announced the nominations of E. Duncan Getchell, Jr., of McGuire Woods and Steve Matthews of Charleston to the Fourth Circuit.
ACS Blog links here to comments by Senator Warner in the Norfolk paper and in a press release from Senator Webb, to the effect that the White House will deserve what it gets for not picking someone from the list tendered by Warner and Webb.
The Richmond paper has this report, titled "White House defends nominee for 4th Circuit: Neither Warner, Webb recommended Getchell in bipartisan judge picks." This article says Senator Webb's office was likely to stop the Getchell nomination from getting anywhere.
The Washington Post had this report. Paul Fletcher had this post. Sean Andrussier had posts here and here.
If the White House had acted months (or years) ago, these nominees would have made it without any problem. But then, this is the same bunch that thought the Harriet Miers nomination really was a good idea, or so says Jan Crawford Greenburg.
ACS Blog links here to comments by Senator Warner in the Norfolk paper and in a press release from Senator Webb, to the effect that the White House will deserve what it gets for not picking someone from the list tendered by Warner and Webb.
The Richmond paper has this report, titled "White House defends nominee for 4th Circuit: Neither Warner, Webb recommended Getchell in bipartisan judge picks." This article says Senator Webb's office was likely to stop the Getchell nomination from getting anywhere.
The Washington Post had this report. Paul Fletcher had this post. Sean Andrussier had posts here and here.
If the White House had acted months (or years) ago, these nominees would have made it without any problem. But then, this is the same bunch that thought the Harriet Miers nomination really was a good idea, or so says Jan Crawford Greenburg.
Updated ABA trial standards
Here is the 2007 version of Civil Trial Practice Standards, from the ABA.
Cav Man v. Akron Zip
Sometime this week, cast a vote in the CapitalOne Bowl mascot challenge.
OK, it may not be as exciting as a sausage race, such as these.
OK, it may not be as exciting as a sausage race, such as these.
Friday, September 07, 2007
They say I wouldn't recognize the place now
Some day, I might go back to Lancaster County just to look around, but everything I remember will be gone or have moved, like the Freeze and Frizz - it says here they lost their lease after 38 years.
Philly steaks and ice cream - I'd go there tonight, if it wasn't 450 miles away. If they were closed, I'd go to Captain Gus's Steak Shop. A couple of years back I went to New Jersey with Tim McAfee and Jerry Gray and they laughed when I ordered a steak sandwich that appeared to be about two feet long, but there was none left afterwards.
And, that guy we deposed at Fort Dix made it back to Southwest Virginia, or so I'm told.
Philly steaks and ice cream - I'd go there tonight, if it wasn't 450 miles away. If they were closed, I'd go to Captain Gus's Steak Shop. A couple of years back I went to New Jersey with Tim McAfee and Jerry Gray and they laughed when I ordered a steak sandwich that appeared to be about two feet long, but there was none left afterwards.
And, that guy we deposed at Fort Dix made it back to Southwest Virginia, or so I'm told.
Thursday, September 06, 2007
On granting stay of money judgment in a bankruptcy case appealed to the Fourth Circuit
In the case of Mountain Empire Oil Co. v. Callahan, Trustee, Chief Judge Jones of the W.D. Va. concluded that he could and should order a stay of the money judgment he had previously entered, conditioned upon the posting of a supercedeas bond.
Wednesday, September 05, 2007
On the retirement of Paul Dellinger
Blue Ridge Muse has this post paying tribute to the now-retired Roanoke Times reporter, Paul Dellinger.
The Roanoke paper has Dellinger's parting shots and this story, which says in part:
"Sometimes, he could appear less than alert. "He'd sit with his eyes closed," recalled Glen Williams, senior U.S. district judge in Abingdon who has known Dellinger 30 years. But the next day, a complex trial would be boiled down in Dellinger's story to a complete and concise account. "He was listening. Had to be. He was always accurate. You could depend on him," Williams said. "He's a great reporter." . . .
Rick Rose, producing artistic director at the Barter Theatre, remembered meeting Dellinger at the news conference called to announce Rose's appointment to the theater in 1992. The local media chose to cover a leaping donkey at the Washington County Fair that day instead, Rose said, but Dellinger was at the theater announcement. . . .
"Paul is, of course, Southwest Virginia's ambassador to Vulcan, and so he and I have shared many tales about the world of science fiction," quipped another well-known local writer, Sharyn McCrumb. "He is encyclopedic on his knowledge of old Western movies, and occasionally I have asked him for research advice for something I was working on. In a story called 'Foggy Mountain Breakdown,' I needed the boys to go to a Southwest Virginia movie theater to see a Western serial, and Paul told me exactly what was playing that week in Bristol and described the action in the film for me." . . .
And what does a man who has written news stories for 44 years do when he retires?
He keeps on writing, of course. Dellinger says he'll write more fiction and also take some courses at a community college.
His wife suspects he'll also start sleeping late. "He tends to be a night owl.""
The Roanoke paper has Dellinger's parting shots and this story, which says in part:
"Sometimes, he could appear less than alert. "He'd sit with his eyes closed," recalled Glen Williams, senior U.S. district judge in Abingdon who has known Dellinger 30 years. But the next day, a complex trial would be boiled down in Dellinger's story to a complete and concise account. "He was listening. Had to be. He was always accurate. You could depend on him," Williams said. "He's a great reporter." . . .
Rick Rose, producing artistic director at the Barter Theatre, remembered meeting Dellinger at the news conference called to announce Rose's appointment to the theater in 1992. The local media chose to cover a leaping donkey at the Washington County Fair that day instead, Rose said, but Dellinger was at the theater announcement. . . .
"Paul is, of course, Southwest Virginia's ambassador to Vulcan, and so he and I have shared many tales about the world of science fiction," quipped another well-known local writer, Sharyn McCrumb. "He is encyclopedic on his knowledge of old Western movies, and occasionally I have asked him for research advice for something I was working on. In a story called 'Foggy Mountain Breakdown,' I needed the boys to go to a Southwest Virginia movie theater to see a Western serial, and Paul told me exactly what was playing that week in Bristol and described the action in the film for me." . . .
And what does a man who has written news stories for 44 years do when he retires?
He keeps on writing, of course. Dellinger says he'll write more fiction and also take some courses at a community college.
His wife suspects he'll also start sleeping late. "He tends to be a night owl.""
Tuesday, September 04, 2007
A Brief History of Bristol's Rhythm and Roots Reunion
This Cybergrass post has the background on the downtown music festival that happens again in a few days.
Monday, September 03, 2007
The next lawyer down the hall
From the VBA website:
"Congratulations to the VBA Young Lawyers Division for its superb showing in the American Bar Association Awards of Achievement Competition! At the recent ABA Annual Meeting, the VBA/YLD received first place in Division IC for its Comprehensive application, first place for Service to the Bar (Attorney Mentor and Referral Network), and second place for Service to the Public (Legal Food Frenzy). Many thanks to Awards of Achievement Chair Lucas Hobbs, who compiled the entry materials, and to the entire Division for its excellent work!"
"Congratulations to the VBA Young Lawyers Division for its superb showing in the American Bar Association Awards of Achievement Competition! At the recent ABA Annual Meeting, the VBA/YLD received first place in Division IC for its Comprehensive application, first place for Service to the Bar (Attorney Mentor and Referral Network), and second place for Service to the Public (Legal Food Frenzy). Many thanks to Awards of Achievement Chair Lucas Hobbs, who compiled the entry materials, and to the entire Division for its excellent work!"
Sunday, September 02, 2007
They said it
"The only thing I was surprised about is that they scored."
Wyoming running back Devin Moore, quoted here, commenting on the 23-3 win over the Virginia Cavaliers.
From the same article:
"We just out-played them in every sense of the word."
Wyoming Coach Joe Glenn.
"Over the past 27 years, since a loss to Maryland in 1980, Virginia's two worst performances in terms of total yards have come in its past two games."
Eric Prisbell, in the Washington Post.
"Virginia had been able to hang around thanks mainly to senior Ryan Weigand, who punted 10 times for a 51.4-yard average. Weigand's 514 punting yards broke the school record of 449 yards held by Russ Henderson since 1977.
That 1977 team also was the worst Virginia team offensively until last year's Cavaliers averaged 257.2 yards in Mike Groh's first season as offensive coordinator."
Doug Doughty, in the Roanoke Times.
Wyoming running back Devin Moore, quoted here, commenting on the 23-3 win over the Virginia Cavaliers.
From the same article:
"We just out-played them in every sense of the word."
Wyoming Coach Joe Glenn.
"Over the past 27 years, since a loss to Maryland in 1980, Virginia's two worst performances in terms of total yards have come in its past two games."
Eric Prisbell, in the Washington Post.
"Virginia had been able to hang around thanks mainly to senior Ryan Weigand, who punted 10 times for a 51.4-yard average. Weigand's 514 punting yards broke the school record of 449 yards held by Russ Henderson since 1977.
That 1977 team also was the worst Virginia team offensively until last year's Cavaliers averaged 257.2 yards in Mike Groh's first season as offensive coordinator."
Doug Doughty, in the Roanoke Times.
Bluegrass musician as ambassador
This little green footballs post tells of the new diplomatic position of a former bandsman with Doyle Lawson & Quicksilver.
Doyle himself is from near Kingsport.
From YouTube, here are two minutes of Doyle Lawson & Quick Silver with Jamie Dailey:
Doyle himself is from near Kingsport.
From YouTube, here are two minutes of Doyle Lawson & Quick Silver with Jamie Dailey:
Has the law on motions to dismiss really changed?
This Legal Theory post links to an article that claims that the law has been changed so much by the recent Supreme Court cases that it is now unconstitutional.
On Virginia as the birthplace of U.S. corporate law
William & Mary Law Professor Oman has this post, titled Virginia and the Birth of Corporate Law.
He says in part:
"The third charter was provoked by the desire of the company to extend its jurisdiction to take in most of the western Atlantic. In particular, they wanted control of Bermuda, where a Virginia-bound ship had wrecked, living about 120 colonists to live on the island for nearly a year while they built a ship to take them to Virginia. (The incident served as the inspiration for Shakespeare's play The Tempest.) The new charter, however, did several things beyond giving the company control over 'The Devil's Isles.'
. . . [M]ost interestingly in my view, it dispensed with the oath of supremacy for investors. This meant that Catholics would be allowed to buy shares in good conscience. The last move is interesting because while the colony remained militantly Protestant and anti-Catholic (or at least anti-Spanish), the innovation does mark the beginning of a shift toward a view of commerce as a realm in which religious differences need not be an impediment to peaceful cooperation."
He says in part:
"The third charter was provoked by the desire of the company to extend its jurisdiction to take in most of the western Atlantic. In particular, they wanted control of Bermuda, where a Virginia-bound ship had wrecked, living about 120 colonists to live on the island for nearly a year while they built a ship to take them to Virginia. (The incident served as the inspiration for Shakespeare's play The Tempest.) The new charter, however, did several things beyond giving the company control over 'The Devil's Isles.'
. . . [M]ost interestingly in my view, it dispensed with the oath of supremacy for investors. This meant that Catholics would be allowed to buy shares in good conscience. The last move is interesting because while the colony remained militantly Protestant and anti-Catholic (or at least anti-Spanish), the innovation does mark the beginning of a shift toward a view of commerce as a realm in which religious differences need not be an impediment to peaceful cooperation."
Professor Tribe, wrong again
This Concurring Opinions post says that Professor Tribe takes the view that a requirement of net neutrality would violate the First Amendment rights of the network providers.
When there is a high level of broadband competition everywhere, then I'll be sympathetic to the "speech" rights of the network owners.
When there is a high level of broadband competition everywhere, then I'll be sympathetic to the "speech" rights of the network owners.
Competition for West and Lexis?
This post links to others discussing a new effort to publish federal and state court opinions for free on the Internet.
Thursday, August 30, 2007
On Judge Kelsey
The VLW Blog has some lists of names of potential nominees to replace Justice Lacy on the Virginia Supreme Court.
Judge D. Arthur Kelsey of the Virginia Court of Appeals is one of my favorites, because he has written so many interesting articles, such as these available online:
Virginia’s answer to Daubert’s question behind the question
Appellate Review and Stare Decisis
PROCEDURAL DEFAULTS IN VIRGINIA TRIAL COURTS: The Adversarial Model & The Imperative of Neutrality
Legal Focus/Civil Litigation: Law and Equity in Virginia
and gave this speech
Law & Politics: The Imperative of Judicial Self-Restraint
in addition to the many cases in which he has written an opinion or cast a vote (such as these)
and he gave up the big-dollar partnership to be a judge (or so I have concluded),
even though I've met him just once
and he has ruled against my position every time (OK, just the one time).
I once heard former Solicitor General Walter Dellinger on C-SPAN opine in connection with one of the recent U.S. Supreme Court nominations: "there's something to be said for hyper-qualified candidates," or words to that effect.
Judge D. Arthur Kelsey of the Virginia Court of Appeals is one of my favorites, because he has written so many interesting articles, such as these available online:
Virginia’s answer to Daubert’s question behind the question
Appellate Review and Stare Decisis
PROCEDURAL DEFAULTS IN VIRGINIA TRIAL COURTS: The Adversarial Model & The Imperative of Neutrality
Legal Focus/Civil Litigation: Law and Equity in Virginia
and gave this speech
Law & Politics: The Imperative of Judicial Self-Restraint
in addition to the many cases in which he has written an opinion or cast a vote (such as these)
and he gave up the big-dollar partnership to be a judge (or so I have concluded),
even though I've met him just once
and he has ruled against my position every time (OK, just the one time).
I once heard former Solicitor General Walter Dellinger on C-SPAN opine in connection with one of the recent U.S. Supreme Court nominations: "there's something to be said for hyper-qualified candidates," or words to that effect.
Wednesday, August 29, 2007
Judge Shull's case to be argued in September?
The cases on the September argument document for the Virginia Supreme Court include the case of Judicial Inquiry and Review Commission of Virginia v. Shull, Judge, etc., or so it says on the argument docket page.
Rooting for one Maryland Terrapin
A fellow named Steffy went to my old high school and is the son of a girl in my sister's class and is the pre-season starting quarterback at Maryland (as described here, in a powerful article from the Baltimore Sun of which one of the commenters said simply, "This is the best article I've read all year.").
One of my high school football buddies, a fellow named Franciscus, was on scholarship at Maryland, and I saw him and his dad Rip on parents' night at Byrd Stadium in November of 1989 (with the Cavaliers winning, 48-21, as shown here).
OK, so that's two.
One of my high school football buddies, a fellow named Franciscus, was on scholarship at Maryland, and I saw him and his dad Rip on parents' night at Byrd Stadium in November of 1989 (with the Cavaliers winning, 48-21, as shown here).
OK, so that's two.
Tuesday, August 28, 2007
Today's links
South Carolinians are talking up former Chief Judge William Wilkins of the Fourth Circuit to be the next Attorney General, as written here and here, but the WSJ Blog puts former Fourth Circuit Judge Michael Luttig on its list.
The Norfolk paper has discovered that someone who has a computer on the Virginia Supreme Court system has done some work on Wikipedia.
This AP story tells about some kind of microtech solution to copper thefts from the CNX gas wells.
ABA Journal has this story about a judge appointing a lawyer to a criminal case and then holding him in contempt for not being ready for trial the next day. The closest thing to that I've experienced was when I was spotted at the courthouse, told to take my client and the store's representative and go work something out in a shoplifting case. (And, we did.)
The Norfolk paper has discovered that someone who has a computer on the Virginia Supreme Court system has done some work on Wikipedia.
This AP story tells about some kind of microtech solution to copper thefts from the CNX gas wells.
ABA Journal has this story about a judge appointing a lawyer to a criminal case and then holding him in contempt for not being ready for trial the next day. The closest thing to that I've experienced was when I was spotted at the courthouse, told to take my client and the store's representative and go work something out in a shoplifting case. (And, we did.)
Monday, August 27, 2007
Worth snatching
Here from somebody at the Kaufman and Canoles firm is an excellent article on Massie v. Firmstone, one of those Virginia law concepts that you usually learn about the hard away when your client's testimony goes a little awry and some good lawyer on the other side invokes it against you.
Sunday, August 26, 2007
Man who shot Wallace to be released
This Juris post describes the upcoming release of Arthur Bremer, who shot George Wallace during the 1972 campaign.
About 30 years before the coining of the phrase, "NASCAR dad," Hunter Thompson described the efficacy of George Wallace's campaigning at auto racing events in Fear and Loathing: On the Campaign Trail '72.
The popularity of NASCAR has broadened quite a bit since then, while the appeal of politicians with the then-held views of Wallace has withered to naught.
About 30 years before the coining of the phrase, "NASCAR dad," Hunter Thompson described the efficacy of George Wallace's campaigning at auto racing events in Fear and Loathing: On the Campaign Trail '72.
The popularity of NASCAR has broadened quite a bit since then, while the appeal of politicians with the then-held views of Wallace has withered to naught.
The one page with my name in the U.S. Reports
Check out the list of counsel for amici curiae in the footnote on page 128 of Volume 541.
Or, just take my word for it.
Or, just take my word for it.
On e-discovery in state court
This post says the National Commission on uniform state laws has approved Uniform Rules Relating to Electronically Stored Information.
No doubt those working on e-discovery in Virginia courts with the Boyd-Graves Conference will examine this document.
No doubt those working on e-discovery in Virginia courts with the Boyd-Graves Conference will examine this document.
Ray Ward sums up brief writing
I agree with almost 100% of this, and the rest is probably just my own stubbornness.
Thursday, August 23, 2007
That big DUI issue
Yesterday, the Fourth Circuit in U.S. v. Washington, in an opinion by Judge Niemeyer, joined by Judge Traxler, with Judge Michael dissenting, rejected the argument that a criminal defendant charged with driving while under the influence has a constitutional right under the Confrontation Clause to cross-examine the lab technician who handled his blood or breath test.
That's one of those issues that became interesting again after the Supreme Court's decision in Crawford, which creates an issue someone might raise any time out-of-court statements are used to try convict someone.
That's one of those issues that became interesting again after the Supreme Court's decision in Crawford, which creates an issue someone might raise any time out-of-court statements are used to try convict someone.
It really is that time again
Today the blog has got a ton of hits from Knoxville people, past and present, and not by way of the Instapundit, but instead some Vol fans have discovered this post - still one of my favorites.
Wednesday, August 22, 2007
On official capacity defendants
A few years ago, I filed a motion to dismiss a woman who had been sued only in her official capacity, with this argument:
A suit against a government official in her official capacity is, in effect, a suit against the government entity. See McMillian v. Monroe County, Ala., 520 U.S. 781, 785 n.2 (1997); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Joining both the Board members in their official capacity and Board itself is unnecessary and redundant. See Graham, 473 U.S. at 167 n. 14 (“There is no longer a need to bring official-capacity actions against local government officials, for . . . local government units can be sued directly for damages and injunctive or declaratory relief”). Based on these principles, federal courts in every region of this United States have dismissed official capacity claims as redundant, duplicative, or unnecessary, where the government itself is also named as a defendant. See Smith v. Metropolitan School Dist. Perry Tp., 128 F.3d 1014, 1021 n.3 (7th Cir. 1997) (“Because Smith’s suit is also against the entity, i.e., the School District and School Board, her claims against the principal and assistant principal, in their official capacities, are redundant”); Jackson v. Marion County Sheriff’s Dept., 67 F.3d 301, 1995 WL 564665 at *1 (7th Cir.) (“Although the suit against the officers in their official capacities was dropped, [plaintiff] was still able to pursue the identical claim against [the] County”); Alicea v. City of Chicago, 2002 WL 1021553 at *4 (N.D. Ill. 2002) (“because Alicea already names the City as a defendant, the claims against Jason in his official capacity are dismissed as duplicative”); Associated Fire Fighters of Illinois, AFL-CIO v. Town of Cicero, 2002 WL 460875 at *1 (N.D. Ill. 2002) (citing cases dismissing official capacity defendants as “redundant”); Love-Lane v. Martin, 2002 WL 745853 at *4 (M.D.N.C. 2002) (official capacity claim “is redundant and will be dismissed”); Goins v. Hitchcock I.S.D., 191 F. Supp.2d 860, 868 (S.D. Tex. 2002) (dismissing official capacity as “redundant”); Burns v. Board of Com’rs of County of Jackson, Kansas, 2002 WL 596137 (D. Kan.); Gonser v. Twiggs County, 182 F. Supp.2d 1253, 1256-1257 (M.D. Ga. 2002) (dismissing official capacity claims as “duplicative of the suit against the County”); Ramsey v. Schauble, 141 F. Supp.2d 584, 591 (W.D.N.C. 2001) (the “official capacity claim . . . is redundant and shall be dismissed”); McCall v. Dallas Ind. School Dist., 2001 WL 1335853 at *2 (N.D. Tex. 2001); Fultz v. Whittaker, 187 F. Supp.2d 695, 708 (W.D. Ky. 2001) (dismissing official capacity claims which “duplicate the action against the” government entity); Holley v. City of Roanoke, 162 F. Supp.2d 1335, 1341 n.2 (M.D. Ala. 2001) (dismissing official capacity claims); Rocha v. Baca, 2000 WL 1909474 at *7 (C.D. Cal. 2000) (dismissing official capacity claims “as duplicative”); Burton v. City of Philadelphia, 121 F. Supp.2d 810, 812-813 (E.D. Pa. 2000) (dismissing official capacity claims as “redundant”); Roberts v. City of Geneva, 114 F. Supp.2d 1199, 1210 (M.D. Ala. 2000) (“Plaintiff’s § 1983 claims against Lindsey, Motley, and Barney in their official capacities are due to be dismissed, because Plaintiff also has brought his § 1983 claims against the City”); Harford v. County of Broome, 1999 WL 615190 at *6 (N.D.N.Y. 1999) (dismissing official capacity claims); Sheriff’s Silver Star Ass’n of Oswego County, Inc. v. County of Oswego, 56 F. Supp.2d 263, 265 n.3 (N.D.N.Y. 1999) (same); Bracey v. Buchanan, 55 F. Supp.2d 416, 420 (E.D. Va. 1999) (granting motion to dismiss for failure to state a claim); Perry v. Carter, 1998 WL 1745365 at *6 (E.D. Va. 1998) (dismissing official capacity claim “since the same is duplicative of the suit against the City itself”); R.S.S.W., Inc. v. City of Keego Harbor, 18 F. Supp.2d 738, 750 (E.D. Mich. 1998) (dismissing official capacity claims “as duplicative of the claims against the municipality”); McCaslin v. Wilkins, 17 F. Supp.2d 840, 844 (W.D. Ark. 1998) (“the Court, in following the majority of courts on this issue, will therefore dismiss those claims as against Wilkins and White in their official capacities,” citing cases); Gibson v. Hickman, 2 F. Supp.2d 1481, 1482-1483 (M.D. Ga. 1998) (official capacity claims dismissed as “indistinguishable” from the claim against the government entity); Alvarez v. Montgomery County, Md., 963 F. Supp. 495, 497 (D. Md. 1997) (noting earlier dismissal of official capacity claims “as they were duplicative of the claim brought directly against Montgomery County”); Luke v. Abbott, 954 F. Supp. 202, 204 (C.D. Cal. 1997) (“If both [the government and an official capacity defendant] are named, it is proper upon request for the Court to dismiss the official-capacity officer, leaving the local government entity as the correct defendant”); Storm v. Town of Woodstock, N.Y., 944 F. Supp. 139, 143 (N.D.N.Y. 1996) (dismissing official capacity claims “as redundant”); Carnell v. Grimm, 872 F. Supp. 746, 752 (D. Haw. 1994) (“Any claims against Flynn and Noguchi in their official capacities duplicate plaintiff’s claims against the CCH and are dismissed”); Thompson v. City of Arlington, Tex., 838 F. Supp. 1137, 1143 (N.D. Tex. 1993) (“Since the official capacity claims are in reality claims against City, the court will dismiss those claims as to the individual defendants”); Zervas v. District of Columbia, 817 F.Supp. 148, 151 (D.D.C. 1993) (dismissing as duplicative claims against officials in their official capacity where municipality had been sued).
Besides redundancy, dismissal of official capacity claims is consistent with the policy that litigation should proceed in the name of the real parties in interest, and “will promote judicial efficiency and reduce the chance of confusion.” Keene v. Rinaldi, 127 F. Supp.2d 770, 774 (M.D.N.C. 2000). As the Fourth Circuit has explained, “[w]here, as here, no claim against officials in their individual capacities was made, a simpler, technically correct, and by far preferable structuring would have been to name the [government entity] as the sole defendant.” Spell v. McDaniel, 824 F.2d 1380, 1396 (4th Cir. 1987). Compare Andrews v. Daw, 201 F.3d 521, 525 (4th Cir. 2000) (“the real party in interest in an official-capacity suit is the entity”); Gray v. Laws, 51 F.3d 426, 431 (4th Cir. 1995) (same); Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“To keep both the City and the officers sued in their official capacity as defendants in this case would have been redundant and possibly confusing to the jury”); Sims v. Unified Government of Wyandotte County/Kansas City, Kan., 120 F. Supp.2d 938, 945 (D. Kan. 2000) (“When a plaintiff names both a municipality and a municipal officer in his official capacity as defendants in an action, the suit against the officer is redundant, confusing, and unnecessary and should be dismissed”); Luke v. Abbott, 954 F. Supp. 202, 204 (C.D. Cal. 1997) (“it is no longer necessary or proper to name as a defendant a particular local government officer acting in official capacity. To do so only leads to a duplication of documents and pleadings, as well as wasted public resources for increased attorneys fees”); White v. City of Chicago, 1991 WL 204946 at *2 (N.D. Ill. 1991) (“Dismissing the official-capacity claim will serve to streamline and clarify the complaint”).
The dismissal should be with prejudice. See Rowe v. City of Fort Lauderdale, 8 F. Supp.2d 1369, 1375 n.7 (S.D. Fla. 1998) (dismissal of official capacity claims with prejudice); Garrett v. Clarke County Bd. of Educ., 857 F. Supp. 949, 952 (S.D. Ala. 1994) (same); Kenny v. Whitplain Township, 1996 WL 445352 at *3 (E.D. Pa.) (same); Hamilton v. City of Chicago, 1993 WL 535351 at *2 (N.D. Ill. 1993) (same); compare Busby, 931 F.2d at 776 (upholding directed verdict as to official capacity claims); Douris v. County of Bucks, 2001 WL 767579 at *7 (E.D. Pa.) (granting summary judgment on “unnecessary” official capacity claim); Sims, 120 F. Supp.2d at 945 (entering judgment on the pleadings as to official capacity claims); Walters v. City of Andalusia, 89 F. Supp.2d 1266, 1275 (M.D. Ala. 2000) (granting summary judgment on official capacity claims).
The motion was granted before the other side replied.
Now I read this footnote in a Buchanan County school board case:
"The individual defendants also assert in their Motion to Dismiss that a suit against them in their official capacities is redundant “because the School Board itself is a party and official capacity suits represent only another way of pleading an action against an entity of which an officer is an agent.' (Defs.' Mot. Dismiss Am. Compl. ¶ 5.) While it is true that a suit against a municipal officer is a suit against the entity itself, it is established that individual officers can be named in their official capacities even if the entity is also a party. See Chase v. City of Portsmouth, 428 F. Supp. 2d 487, 489-90 (E.D. Va. 2006) ('A significant amount of case law shows government officials named in their official capacities alongside the entities for which they are associated . . . . Naming [the officials] . . . even though damages cannot be obtained from them, does provide a certain level of public accountability.' Id."
That's really lame, I'm not buying it for a minute. Keeping parties in the case who cannot be liable solely for purposes of "public accountability" is a completely alien concept to any notion of civil procedure that I know about.
Also, you'd think that the individual defendants sued in their individual capacity would have a good shot at a qualified immunity defense to the First Amendment claim in that School Board case.
A suit against a government official in her official capacity is, in effect, a suit against the government entity. See McMillian v. Monroe County, Ala., 520 U.S. 781, 785 n.2 (1997); Kentucky v. Graham, 473 U.S. 159, 165-66 (1985). Joining both the Board members in their official capacity and Board itself is unnecessary and redundant. See Graham, 473 U.S. at 167 n. 14 (“There is no longer a need to bring official-capacity actions against local government officials, for . . . local government units can be sued directly for damages and injunctive or declaratory relief”). Based on these principles, federal courts in every region of this United States have dismissed official capacity claims as redundant, duplicative, or unnecessary, where the government itself is also named as a defendant. See Smith v. Metropolitan School Dist. Perry Tp., 128 F.3d 1014, 1021 n.3 (7th Cir. 1997) (“Because Smith’s suit is also against the entity, i.e., the School District and School Board, her claims against the principal and assistant principal, in their official capacities, are redundant”); Jackson v. Marion County Sheriff’s Dept., 67 F.3d 301, 1995 WL 564665 at *1 (7th Cir.) (“Although the suit against the officers in their official capacities was dropped, [plaintiff] was still able to pursue the identical claim against [the] County”); Alicea v. City of Chicago, 2002 WL 1021553 at *4 (N.D. Ill. 2002) (“because Alicea already names the City as a defendant, the claims against Jason in his official capacity are dismissed as duplicative”); Associated Fire Fighters of Illinois, AFL-CIO v. Town of Cicero, 2002 WL 460875 at *1 (N.D. Ill. 2002) (citing cases dismissing official capacity defendants as “redundant”); Love-Lane v. Martin, 2002 WL 745853 at *4 (M.D.N.C. 2002) (official capacity claim “is redundant and will be dismissed”); Goins v. Hitchcock I.S.D., 191 F. Supp.2d 860, 868 (S.D. Tex. 2002) (dismissing official capacity as “redundant”); Burns v. Board of Com’rs of County of Jackson, Kansas, 2002 WL 596137 (D. Kan.); Gonser v. Twiggs County, 182 F. Supp.2d 1253, 1256-1257 (M.D. Ga. 2002) (dismissing official capacity claims as “duplicative of the suit against the County”); Ramsey v. Schauble, 141 F. Supp.2d 584, 591 (W.D.N.C. 2001) (the “official capacity claim . . . is redundant and shall be dismissed”); McCall v. Dallas Ind. School Dist., 2001 WL 1335853 at *2 (N.D. Tex. 2001); Fultz v. Whittaker, 187 F. Supp.2d 695, 708 (W.D. Ky. 2001) (dismissing official capacity claims which “duplicate the action against the” government entity); Holley v. City of Roanoke, 162 F. Supp.2d 1335, 1341 n.2 (M.D. Ala. 2001) (dismissing official capacity claims); Rocha v. Baca, 2000 WL 1909474 at *7 (C.D. Cal. 2000) (dismissing official capacity claims “as duplicative”); Burton v. City of Philadelphia, 121 F. Supp.2d 810, 812-813 (E.D. Pa. 2000) (dismissing official capacity claims as “redundant”); Roberts v. City of Geneva, 114 F. Supp.2d 1199, 1210 (M.D. Ala. 2000) (“Plaintiff’s § 1983 claims against Lindsey, Motley, and Barney in their official capacities are due to be dismissed, because Plaintiff also has brought his § 1983 claims against the City”); Harford v. County of Broome, 1999 WL 615190 at *6 (N.D.N.Y. 1999) (dismissing official capacity claims); Sheriff’s Silver Star Ass’n of Oswego County, Inc. v. County of Oswego, 56 F. Supp.2d 263, 265 n.3 (N.D.N.Y. 1999) (same); Bracey v. Buchanan, 55 F. Supp.2d 416, 420 (E.D. Va. 1999) (granting motion to dismiss for failure to state a claim); Perry v. Carter, 1998 WL 1745365 at *6 (E.D. Va. 1998) (dismissing official capacity claim “since the same is duplicative of the suit against the City itself”); R.S.S.W., Inc. v. City of Keego Harbor, 18 F. Supp.2d 738, 750 (E.D. Mich. 1998) (dismissing official capacity claims “as duplicative of the claims against the municipality”); McCaslin v. Wilkins, 17 F. Supp.2d 840, 844 (W.D. Ark. 1998) (“the Court, in following the majority of courts on this issue, will therefore dismiss those claims as against Wilkins and White in their official capacities,” citing cases); Gibson v. Hickman, 2 F. Supp.2d 1481, 1482-1483 (M.D. Ga. 1998) (official capacity claims dismissed as “indistinguishable” from the claim against the government entity); Alvarez v. Montgomery County, Md., 963 F. Supp. 495, 497 (D. Md. 1997) (noting earlier dismissal of official capacity claims “as they were duplicative of the claim brought directly against Montgomery County”); Luke v. Abbott, 954 F. Supp. 202, 204 (C.D. Cal. 1997) (“If both [the government and an official capacity defendant] are named, it is proper upon request for the Court to dismiss the official-capacity officer, leaving the local government entity as the correct defendant”); Storm v. Town of Woodstock, N.Y., 944 F. Supp. 139, 143 (N.D.N.Y. 1996) (dismissing official capacity claims “as redundant”); Carnell v. Grimm, 872 F. Supp. 746, 752 (D. Haw. 1994) (“Any claims against Flynn and Noguchi in their official capacities duplicate plaintiff’s claims against the CCH and are dismissed”); Thompson v. City of Arlington, Tex., 838 F. Supp. 1137, 1143 (N.D. Tex. 1993) (“Since the official capacity claims are in reality claims against City, the court will dismiss those claims as to the individual defendants”); Zervas v. District of Columbia, 817 F.Supp. 148, 151 (D.D.C. 1993) (dismissing as duplicative claims against officials in their official capacity where municipality had been sued).
Besides redundancy, dismissal of official capacity claims is consistent with the policy that litigation should proceed in the name of the real parties in interest, and “will promote judicial efficiency and reduce the chance of confusion.” Keene v. Rinaldi, 127 F. Supp.2d 770, 774 (M.D.N.C. 2000). As the Fourth Circuit has explained, “[w]here, as here, no claim against officials in their individual capacities was made, a simpler, technically correct, and by far preferable structuring would have been to name the [government entity] as the sole defendant.” Spell v. McDaniel, 824 F.2d 1380, 1396 (4th Cir. 1987). Compare Andrews v. Daw, 201 F.3d 521, 525 (4th Cir. 2000) (“the real party in interest in an official-capacity suit is the entity”); Gray v. Laws, 51 F.3d 426, 431 (4th Cir. 1995) (same); Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991) (“To keep both the City and the officers sued in their official capacity as defendants in this case would have been redundant and possibly confusing to the jury”); Sims v. Unified Government of Wyandotte County/Kansas City, Kan., 120 F. Supp.2d 938, 945 (D. Kan. 2000) (“When a plaintiff names both a municipality and a municipal officer in his official capacity as defendants in an action, the suit against the officer is redundant, confusing, and unnecessary and should be dismissed”); Luke v. Abbott, 954 F. Supp. 202, 204 (C.D. Cal. 1997) (“it is no longer necessary or proper to name as a defendant a particular local government officer acting in official capacity. To do so only leads to a duplication of documents and pleadings, as well as wasted public resources for increased attorneys fees”); White v. City of Chicago, 1991 WL 204946 at *2 (N.D. Ill. 1991) (“Dismissing the official-capacity claim will serve to streamline and clarify the complaint”).
The dismissal should be with prejudice. See Rowe v. City of Fort Lauderdale, 8 F. Supp.2d 1369, 1375 n.7 (S.D. Fla. 1998) (dismissal of official capacity claims with prejudice); Garrett v. Clarke County Bd. of Educ., 857 F. Supp. 949, 952 (S.D. Ala. 1994) (same); Kenny v. Whitplain Township, 1996 WL 445352 at *3 (E.D. Pa.) (same); Hamilton v. City of Chicago, 1993 WL 535351 at *2 (N.D. Ill. 1993) (same); compare Busby, 931 F.2d at 776 (upholding directed verdict as to official capacity claims); Douris v. County of Bucks, 2001 WL 767579 at *7 (E.D. Pa.) (granting summary judgment on “unnecessary” official capacity claim); Sims, 120 F. Supp.2d at 945 (entering judgment on the pleadings as to official capacity claims); Walters v. City of Andalusia, 89 F. Supp.2d 1266, 1275 (M.D. Ala. 2000) (granting summary judgment on official capacity claims).
The motion was granted before the other side replied.
Now I read this footnote in a Buchanan County school board case:
"The individual defendants also assert in their Motion to Dismiss that a suit against them in their official capacities is redundant “because the School Board itself is a party and official capacity suits represent only another way of pleading an action against an entity of which an officer is an agent.' (Defs.' Mot. Dismiss Am. Compl. ¶ 5.) While it is true that a suit against a municipal officer is a suit against the entity itself, it is established that individual officers can be named in their official capacities even if the entity is also a party. See Chase v. City of Portsmouth, 428 F. Supp. 2d 487, 489-90 (E.D. Va. 2006) ('A significant amount of case law shows government officials named in their official capacities alongside the entities for which they are associated . . . . Naming [the officials] . . . even though damages cannot be obtained from them, does provide a certain level of public accountability.' Id."
That's really lame, I'm not buying it for a minute. Keeping parties in the case who cannot be liable solely for purposes of "public accountability" is a completely alien concept to any notion of civil procedure that I know about.
Also, you'd think that the individual defendants sued in their individual capacity would have a good shot at a qualified immunity defense to the First Amendment claim in that School Board case.
The Tortoise and the Hound
Zeno might have been wrong to suggest that Achilles could never catch the tortoise, but certainly Jenna will not catch the turtle, because it spooked her and so she retired to a safe distance where she could bark at it.
The paradox of Achilles and the tortoise is stated something like this:
"The Tortoise challenged Achilles to a race, claiming that he would win as long as Achilles gave him a small head start. Achilles laughed at this, for of course he was a mighty warrior and swift of foot, whereas the Tortoise was heavy and slow.
'How big a head start do you need?' he asked the Tortoise with a smile.
'Ten meters,' the latter replied.
Achilles laughed louder than ever. 'You will surely lose, my friend, in that case,' he told the Tortoise, 'but let us race, if you wish it.'
'On the contrary,' said the Tortoise, 'I will win, and I can prove it to you by a simple argument.'
'Go on then,' Achilles replied, with less confidence than he felt before. He knew he was the superior athlete, but he also knew the Tortoise had the sharper wits, and he had lost many a bewildering argument with him before this.
'Suppose,' began the Tortoise, 'that you give me a 10-meter head start. Would you say that you could cover that 10 meters between us very quickly?'
'Very quickly,' Achilles affirmed.
'And in that time, how far should I have gone, do you think?'
'Perhaps a meter – no more,' said Achilles after a moment's thought.
'Very well,' replied the Tortoise, 'so now there is a meter between us. And you would catch up that distance very quickly?'
'Very quickly indeed!'
'And yet, in that time I shall have gone a little way farther, so that now you must catch that distance up, yes?'
'Ye-es,' said Achilles slowly.
'And while you are doing so, I shall have gone a little way farther, so that you must then catch up the new distance,' the Tortoise continued smoothly.
Achilles said nothing.
'And so you see, in each moment you must be catching up the distance between us, and yet I – at the same time – will be adding a new distance, however small, for you to catch up again.'
'Indeed, it must be so,' said Achilles wearily.
'And so you can never catch up,' the Tortoise concluded sympathetically.
'You are right, as always,' said Achilles sadly – and conceded the race."
On attorneys' fees
The increasing incidence of hourly rates in excess of $1,000 per hour has led some pundits to predict the end of hourly billing. See, e.g, Legal Marketing Blog, Is the Billable Hour Now Dead?
Meanwhile, I recently collected some cases about court-approved rates in the W.D. Va.:
"In recent years, this Court has approved hourly rates between $150 and $210. See Freeman v. Potter, 2006 WL 2631722 (W.D. Va.) ($200 rate in Title VII case); Loosemore v. Street, 2005 WL 2864749 (W.D. Va.) (hourly rates ranging from $95 to $185 were reasonable and in line with rates charged by counsel practicing in Big Stone Gap division in commercial case); Double K Properties, LLC v. Aaron Rents, Inc., 2003 WL 22697218 (W.D. Va.) ($210 rate in commercial case); Meade v. Barnhart, 218 F. Supp.2d 811, 813 (W.D. Va. 2002) ($150 rate in benefits case); Rike v. Harris, 2002 WL 1729517 (W.D. Va.) ($150 rate in Fair Housing Act case); Powell Valley Bankshares, Inc. v. Wynn, 2002 WL 728348, *3 (W.D. Va.) ($200 rate in commercial case); Hilt v. Hurd, 2001 WL 1517041, *2 (W.D. Va.) (statutory fees at $150 per hour out of court and $200 in court). Similarly, in Depaoli v. Vacation Sales Associates, L.L.C., 2007 WL 1675344, *6 (4th Cir.), the Fourth Circuit reduced to a hourly rate of $225 the fees in a successful Title VII case from the Eastern District of Virginia."
Meanwhile, I recently collected some cases about court-approved rates in the W.D. Va.:
"In recent years, this Court has approved hourly rates between $150 and $210. See Freeman v. Potter, 2006 WL 2631722 (W.D. Va.) ($200 rate in Title VII case); Loosemore v. Street, 2005 WL 2864749 (W.D. Va.) (hourly rates ranging from $95 to $185 were reasonable and in line with rates charged by counsel practicing in Big Stone Gap division in commercial case); Double K Properties, LLC v. Aaron Rents, Inc., 2003 WL 22697218 (W.D. Va.) ($210 rate in commercial case); Meade v. Barnhart, 218 F. Supp.2d 811, 813 (W.D. Va. 2002) ($150 rate in benefits case); Rike v. Harris, 2002 WL 1729517 (W.D. Va.) ($150 rate in Fair Housing Act case); Powell Valley Bankshares, Inc. v. Wynn, 2002 WL 728348, *3 (W.D. Va.) ($200 rate in commercial case); Hilt v. Hurd, 2001 WL 1517041, *2 (W.D. Va.) (statutory fees at $150 per hour out of court and $200 in court). Similarly, in Depaoli v. Vacation Sales Associates, L.L.C., 2007 WL 1675344, *6 (4th Cir.), the Fourth Circuit reduced to a hourly rate of $225 the fees in a successful Title VII case from the Eastern District of Virginia."
Tuesday, August 21, 2007
Today's links
This Volokh post links to a Washington Post editorial favoring confirmation of Leslie Southwick to the Fifth Circuit. Today, however, the Post published this letter opposing confirmation. Professor Bainbridge has this post in response.
In Arlington, a circuit court judge postponed ruling on constitutional issues related to the abusive driver fees, to wait and see whether the party gets convicted and suffers the imposition of the fees, according to this report.
I've never had a client try this defense in a contract case, but it says here that some people are faking death to escape their cell phone contracts.
It says here that newspapers make lots of mistakes.
This Charlottesville story describes increases in the number of foreclosures in Virginia.
I heard on Paul Harvey this story about the blind woman golfer who heard her hole-in-one.
In Arlington, a circuit court judge postponed ruling on constitutional issues related to the abusive driver fees, to wait and see whether the party gets convicted and suffers the imposition of the fees, according to this report.
I've never had a client try this defense in a contract case, but it says here that some people are faking death to escape their cell phone contracts.
It says here that newspapers make lots of mistakes.
This Charlottesville story describes increases in the number of foreclosures in Virginia.
I heard on Paul Harvey this story about the blind woman golfer who heard her hole-in-one.
Those bloggers
In this brief, the Council on American-Islamic Relations complains:
"Some of the most virulent reaction to the government’s naming of CAIR as an unindicted coconspirator can be seen by the reaction of various weblogging pundits. The website JihadWatch.org writes that with the naming of CAIR “[o]ne would think that would end forever the canny masquerade as a moderate civil rights organization, a charade it has been successfully pulling off for years.” Unindicted co-conspirators in Hamas funding case say Muslim civil rights woes increasing, JihadWatch.org, at http://www.jihadwatch.org/archives/016942.php. The website LittleGreenFootballs.com dismisses the civil rights report of CAIR, “one of the unindicted co-conspirators in the case against Hamas-linked ‘charity’ the Holy Land Foundation” as “bogus” and “inflated.” See Unindicted Co-Conspirators Whining Again, LittleGreenFootballs.com (June 15, 2007), available at http://littlegreenfootballs.com/weblog/?entry=25856_Unindicted_Co-Conspirators_Whining_Again&only; see also Patrick Poole, CAIR Fingered by Feds, FrontPageMagazine.com (June 8, 2007) (advocating that CAIR should be “abandoned by its friends in Congress, the media establishment, academia, and the federal government, due to the Department of Justice’s identification of CAIR’s terrorist ties”)."
That's harsh. It makes me think of Democrats calling for all Americans to boycott Fox News advertisers.
"Some of the most virulent reaction to the government’s naming of CAIR as an unindicted coconspirator can be seen by the reaction of various weblogging pundits. The website JihadWatch.org writes that with the naming of CAIR “[o]ne would think that would end forever the canny masquerade as a moderate civil rights organization, a charade it has been successfully pulling off for years.” Unindicted co-conspirators in Hamas funding case say Muslim civil rights woes increasing, JihadWatch.org, at http://www.jihadwatch.org/archives/016942.php. The website LittleGreenFootballs.com dismisses the civil rights report of CAIR, “one of the unindicted co-conspirators in the case against Hamas-linked ‘charity’ the Holy Land Foundation” as “bogus” and “inflated.” See Unindicted Co-Conspirators Whining Again, LittleGreenFootballs.com (June 15, 2007), available at http://littlegreenfootballs.com/weblog/?entry=25856_Unindicted_Co-Conspirators_Whining_Again&only; see also Patrick Poole, CAIR Fingered by Feds, FrontPageMagazine.com (June 8, 2007) (advocating that CAIR should be “abandoned by its friends in Congress, the media establishment, academia, and the federal government, due to the Department of Justice’s identification of CAIR’s terrorist ties”)."
That's harsh. It makes me think of Democrats calling for all Americans to boycott Fox News advertisers.
More good stuff
Via Professor Bainbridge, here is posed the question, which is better, UCLA or U.Va? I'm surprised that there could be a side-by-side without mentioning Kareem Abdul-Jabbar and Ralph Sampson, or maybe there was, in the line that said number of national championships - U.Va. 15, UCLA 100.
Via Instapundit, the celebrity guest star this week at CrimProf Blog is Tennessee's own Penny White, formerly of the Tennessee Supreme Court. I went to a Tennessee Trial Lawyers meeting in Johnson City a couple of years back where she was one of the speakers and everyone there was on a first name basis with her except for me.
David Giacalone takes issue here with Scott Turow's condemnation (no pun intended) in the ABA Journal of hourly billing.
In the criminal case against former Senate candidate Mark Tate, both sides are trying to take evidence from the past or present lawyers for the other side. Tate wants to use testimony from the Commonwealth's attorney who started the case before recusing himself, and the replacement prosecutor wants to take evidence from Tate's lawyer, who was a donor to the Tate campaign, all according to this article in the Post. Usually, you don't get to cross-examine the other side's lawyer under oath.
Here the Fredericksburg paper reports that someone stole an ATM machine, with a stolen truck.
Via Instapundit, the celebrity guest star this week at CrimProf Blog is Tennessee's own Penny White, formerly of the Tennessee Supreme Court. I went to a Tennessee Trial Lawyers meeting in Johnson City a couple of years back where she was one of the speakers and everyone there was on a first name basis with her except for me.
David Giacalone takes issue here with Scott Turow's condemnation (no pun intended) in the ABA Journal of hourly billing.
In the criminal case against former Senate candidate Mark Tate, both sides are trying to take evidence from the past or present lawyers for the other side. Tate wants to use testimony from the Commonwealth's attorney who started the case before recusing himself, and the replacement prosecutor wants to take evidence from Tate's lawyer, who was a donor to the Tate campaign, all according to this article in the Post. Usually, you don't get to cross-examine the other side's lawyer under oath.
Here the Fredericksburg paper reports that someone stole an ATM machine, with a stolen truck.
Monday, August 20, 2007
Bunch of stuff
Here's the opinion of one of the bunch that's suing to have the transportation funding statutes overturned as unconstitutional.
Here is a story on the latest appeal in the Darryl Atkins case. It says in part: "
I read the latest ACLU brief from the California same-sex marriage litigation, which says in part: "If the California Constitution does not provide lesbians and gay men with the right to marry, then it will have failed them in the profoundest possible respects. It will tell them that they are not entitled to have their love and their commitment ratified by the state except in a pale simulacrum of marriage, known as domestic partnerships – a status that is not merely separate, but inexorably inferior in every way that matters most to them as human beings." The first response that comes to mind: if the California Constitution does not provide lesbians and gay men with the right to marry, then they lose the case, regardless of all that other.
The ACLU did get a good result in the case described here and here, brought on behalf of a couple of anti-Bush protesters, who got $80,000.
Here is a story on the latest appeal in the Darryl Atkins case. It says in part: "
I read the latest ACLU brief from the California same-sex marriage litigation, which says in part: "If the California Constitution does not provide lesbians and gay men with the right to marry, then it will have failed them in the profoundest possible respects. It will tell them that they are not entitled to have their love and their commitment ratified by the state except in a pale simulacrum of marriage, known as domestic partnerships – a status that is not merely separate, but inexorably inferior in every way that matters most to them as human beings." The first response that comes to mind: if the California Constitution does not provide lesbians and gay men with the right to marry, then they lose the case, regardless of all that other.
The ACLU did get a good result in the case described here and here, brought on behalf of a couple of anti-Bush protesters, who got $80,000.
Frank Kilgore, media darling
Frank was in the Bristol paper lately for this article about the thirtieth anniversary of the Surface Mine Reclamation Act, and then again today with an editorial favoring state laws in Virginia to prohibit smoking in public places.
Maybe this is payback from Media General for the unfair piece from Jeff Shapiro way back when.
Maybe this is payback from Media General for the unfair piece from Jeff Shapiro way back when.
"Norfolk Four" article in Sunday Times Magazine
Here is a very lengthy article about the case of Joseph Dick, Jr., and others, who were allegedly involved with a murder in Norfolk, but now claim their innocence.
The story begins:
"At the Keen Mountain Correctional Center, a gray complex of poured concrete in rural southwest Virginia, Joseph Jesse Dick Jr. sits behind the thick glass pane of a prison interview booth like a specimen in an oversize shadow box. A man of delicate bearing with receding reddish brown hair, a sparse mustache and rectangular prison-issue glasses a bit wide on his long, gaunt face, Dick is here because he pleaded guilty to the 1997 rape and murder of his neighbor Michelle Moore-Bosko — a crime he now says he didn’t commit. And maybe he didn’t. Such proclamations of innocence are no longer surprising. The imprisoned man exonerated by DNA evidence or a belated confession by the actual killer or the emergence of a credible alibi witness is a narrative of increasing familiarity. But even in the upside-down world of wrongful convictions, the extravagant case of Joseph Dick and his supposed partners in crime is in a class of its own."
The story begins:
"At the Keen Mountain Correctional Center, a gray complex of poured concrete in rural southwest Virginia, Joseph Jesse Dick Jr. sits behind the thick glass pane of a prison interview booth like a specimen in an oversize shadow box. A man of delicate bearing with receding reddish brown hair, a sparse mustache and rectangular prison-issue glasses a bit wide on his long, gaunt face, Dick is here because he pleaded guilty to the 1997 rape and murder of his neighbor Michelle Moore-Bosko — a crime he now says he didn’t commit. And maybe he didn’t. Such proclamations of innocence are no longer surprising. The imprisoned man exonerated by DNA evidence or a belated confession by the actual killer or the emergence of a credible alibi witness is a narrative of increasing familiarity. But even in the upside-down world of wrongful convictions, the extravagant case of Joseph Dick and his supposed partners in crime is in a class of its own."
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