Wise County mountain lion?

Somebody sent these to my dad, with this note:

"This lion was hit between Cherry Reservoir Road and High Knob area (near Wise, VA) by a car. Game and Fish had to come and put him down.

He charged at the Fish and Game guy in the process. Look at his PAWS!"

I don't know whether this is true, or just one of those Internet deals.

A while back, I posted here with a link that still works to a piece about mountain lion sightings in Southwest Virginia.

There's no word yet on whether the lion was in town for the latest hearing on the Virginia City power plant, or if he was en route to see the animal lobbyists in St. Paul or Clintwood.

UPDATE: In the comments, Carl Kilo has forwarded the news article from the Coalfield Progress showing the lion story was a hoax debunked on Snopes.com - a real cat but from Arizona. Ah, the joys of the Internet.

SECOND UPDATE: Brian Peterson in the comments says the cat wasn't in Parkersburg, before it wasn't in Wise.

Stuff I think I know about summary judgment

I know this:

"Corroboration is not required to defeat summary judgment. See, e.g., S.E.C. v. Phan, 500 F.3d 895, 909-10 (9th Cir. 2007) (district court erred on summary judgment by disregarding evidence that was “uncorroborated and self-serving”); Shekoyan v. Sibley Intern., 409 F.3d 414, 425 (D.C. Cir. 2005) (“corroboration of [plaintiff’s] version of the facts was irrelevant to the summary judgment analysis.”); Lee v. American Intern. Group, Inc., 31 Fed. Appx. 764, 765 (2nd Cir. 2002) (“The fact that plaintiff had no corroboration and that Miller denied it were of no significance on defendant’s motion for summary judgment.”)."

This I wrote in a brief to the Sixth Circuit, in response to where the District Court judge wrote this:

"Plaintiff has not produced the alleged text messages and, although she testified that she showed the text messages to “everybody” and a “ton of people” including family, friends, and coworkers (both at Applebee’s and at her second job), she has not produced an affidavit from any of those persons."

I may not win the appeal, but at least I got that off my chest.

Wise County Circuit Court opinion from April 1, 1991

Dear Counsel:

This is a case of unique species,
not stare decisis, but stare feces.
The court had serious fun with these complex issues as it spoke,
but this opinion, signed the first, is no April Fool joke.

The court considered the entire record as a whole,
and reviewed counsel arguments as they were told.
This is a feeble attempt at judicial humorous prose.
The findings of fact and conclusions of law disclose:

This case involves a V.E.C. "first impression" appeal
by an employee who said a rude word unreal.
Fired for misconduct connected with his job
by a C.E.O. who judged him an insulting insubordinate slob.

Claimant, Walter Cooper, by name
a 20-year employee of "the Pig", a grocery chain,
missed work due to a workers compensation claim,
and had attempted to organize the labor union game.

His four doctors could not agree
on when his exact return day would be.
So to determine his return to work position
management called Cooper to a 2 1/2 hour "Inquisition".

Cooper arrived at the private meeting with management three:
the C.E.O., personnel mg'r, store mg'r, and he.
Claimant intended to return to work right now,
but the C.E.O. flaunted his power somehow.

The C.E.O. quarreled about Cooper's union organizing smut;
told him to return to work, and "keep his mouth shut";
repeated several demands for claimant to quit -
to all of which Cooper replied, "you're full of shit".

Cooper was fired on the spot,
and V.E.C. benefits he was granted not.
Punish him - wash his mouth out with soap,
but don't hang him with a pink-slpi rope.

It would certainly be a legal mistake,
if one vulgar word would misconduct make.
This expression does not show flagrant disrespect,
nor deliberately defy proper authority I suspect.

Truth is a defense to the tort of slander,
but please forgive me for I meander.
Every dog is entitled to one lawful bite,
so why not allow one naughty word so slight?

If one indelicate word stirs the ire
that's no cause for a hard-working employee to fire.
Union activity is allowed by Federal law,
and is not a legitmate reason to withdraw.

Webster defines "shit" as "foolishness" or "nonsense".
Such an editorial makes good common sense
to describe the C.E.O. as "full of" nonsense,
when he attempts to gag the union at Cooper's expense.

Unions displease some executive bosses,
but not employees who carry their crosses.
V.E.C. and "the Pig" hide behind a dirty phrase
to conceal their prejudice against a union craze.

The V.E.C. conclusion is unsupported by substantial and/or simple evidence
for this reasonable judicial mind accepts a difference.
Here the questions of law are also interpreted by this magistrate,
and the facts do not constitute misconduct, nor insubordinate.

This court finds in favor of the claimant,
and orders the V.E.C. to Cooper make payment.
Counsel for Cooper shall pen a final decree,
and deliver it accordingly for entry to me.

Sincerely,

J. Robert Stump
Judge
(footnotes omitted)

Judge Stump was affirmed on appeal. See Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992).

He said it

"Mr. Jay, is the government running with the fox and chasing with the hounds?"

Justice Scalia, at the oral argument in U.S. v. Clintwood Elkhorn Mining.

Death penalty moratorium?

When I wrote this post, one of my auditors declared that Governor Kaine would not stop executions in Virginia.

But, he has now - for a while - and for a pretty good reason.

On the future of the federal courthouses in the W.D. Va.

In March, the Danville paper had this article, speculating on the future of the federal courthouses in Danville (and Big Stone Gap).

The article quotes Libby Sharp from the clerk's office in Big Stone Gap.

The article says in part:

"In 2007, a congressional committee conducted a comprehensive study of U.S. District courtrooms to determine how often they were being used and for what.

"Many, many courts across the United States were (under consideration for) being closed," said Libby Sharp, deputy clerk in charge of the Big Stone Gap district courts.

Local attorney Lewis Goodman, who works at the Danville Regional Law Center, said, "Danville is high on the underutilization list and is threatened."

WHY 341 MEETINGS WERE IMPORTANT
The 341 meetings constituted about 10 percent of the usage of the building, according to local legal experts.

So if the government does want to close down underutilized courthouses, losing them pushes Danville up the list.

"Ultimately there's a concern…a reduced amount of 341s in Danville will reduce (overall) caseload (which) will justify closing the courthouse," said Mark Williams, a bankruptcy lawyer with Williams, Morrison, Light and Moreau.

Danville wouldn't be the only court in the district. Big Stone Gap managed to escape that fate last month.

Sharp said Big Stone Gap was facing being shut down because there was no resident judge and the district didn't have as many filings as it used to.

But after consideration and a plea from the court, the committee in charge unanimously decided to keep the system in Big Stone Gap.

Caseloads have dropped throughout the region, according to John Corcoran, clerk for the Western District of Virginia. That includes Danville, but doesn't make it unique, he said."

Daniel Gilbert's series on judicial selection

Here are the articles, worth reading:

Virginia Legislators Have Major Role In Judge Selection, March 30

Virginia Judge Selection Process Dates To Reconstruction, March 30

Political ties often key for attaining position on the bench, March 31

Virginia judge-selection process linked to politics, March 31

Data Will Help Lawmakers Determine Judges Qualifications, April 1

Local Bar Associations Felt Neglected Over Endorsements, April 1

This group of articles is pretty well-done, and quotes many people, including me.

The lamest comment attributed to our representatives in Richmond in these articles was from Senator Wampler, if this sentence is accurate: "A weakness of the merit-based system, Wampler believes, is that it allows candidates who feel 'lukewarm' about being a judge to be considered in the process. 'You don’t want somebody lukewarm' on the bench, he said." I know he has wrestled sometimes with getting judgeships filled, but I don't think this came off the way he intended.

Also, it might be concluded from Gilbert's articles that the likelier "lukewarm" judges are the ones selected because of their connections rather than their interest and aptitude, and so they don't seem to particularly enjoy the work or the isolation of the bench. There just might be some of those.

The Lawson girl who wasn't born when I started with the firm

MML's youngest is the new Miss Abingdon. Well done, Maggie.

He said it

"The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman."

Robert H. Jackson, in his famous speech on The Federal Prosecutor.

The book of Minors

I eventually did receive the reprint of The Minors of Virginia, published in 1926, by John B. Minor. Of course, that is not the John B. Minor, who died thirty years prior.

But, he is in there, along with Virginia Minor, William Lewis Herndon, Matthew Fontaine Maury, John Minor Maury, William Andrew Quarles, James Minor Quarles, Charles Minor Blackford, and William Minor Lile.

And, Charles Landon Carter Minor, the head man of what became the University of Maryland, and then what became Virginia Tech, where he got in a fistfight with James H. Lane.

I liked the reference to Judge Quarles of Tennessee, whose report to the tax assessor included ten children and one skillet.

On broadband in Rose Hill and elsewhere

This article about the coming of broadband to Rose Hill in Lee County features my sister, Joan.

The article says in part:

"The nuts and bolts of how broadband came to Rose Hill is a story of leveraging local funds—cash from the state Tobacco Indemnification and Community Revitalization Commission charged with developing Virginia’s tobacco country—to draw in federal grant monies from the U.S. Department of Agriculture’s rural Internet program. The Rose Hill model is being replicated down the road a piece in Ewing (population 436), and the even smaller coal-mining community of St. Charles (population 159)."

Another book

I've been reading Chief Justice: A Biography of Earl Warren, by Ed Cray.

The funniest thing in there, I thought, was the statement attributed to Justice Brennan upon his selection to the Supreme Court, likening himself to a mule at the Kentucky Derby: "I don't expect to distinguish myself, but I will benefit by the association."

More on pleading fraud with particularity

Last year I wrote this post.

So, what good is it?

Look at this opinion and then this opinion. To my own way of thinking, that's how you want to use Rule 9 of the Federal Rules, which rule Middleditch and Sinclair says matches what Virginia law requires. Who knows what will come of that particular case, but it is much different from what I thought at the beginning.

Then again, sometimes I make these same arguments, and a judge somewhere says, nicely done, now go ahead and file your answer and let's get on with it.

Chief Judge Jones on the U.S. Attorney's blanket approach to crack resentencings

This VLW post notes this footnote in U.S. v. Herndon:

"This district is reported to have the fourth largest number of defendants who qualify for a reduction in sentence under the U.S. Sentencing Commission’s policy on retroactivity of the amended crack cocaine guidelines. Unfortunately, it appears that the United States Attorney for this district is objecting to reduction in every case, even those which provide for a reduction in sentence of only a few months. While the Department of Justice opposed the retroactivity of the amended guidelines, once the Sentencing Commission unanimously decided on retroactivity—a decision which Congress has not overruled—a per se objection to reduction does not serve the public interest. For example, the court is required to consider the public safety in determining whether to reduce a particular sentence, see U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.10 cmt. n.1(B)(ii) (Mar. 3, 2008), and the government’s blanket objection in all cases does not assist the court in making that decision, and, in fact, hinders it."

"A horrible embarrassment to the profession"

The Washington Post writes here on the funny thing that might happen because court-appointed lawyers in Virginia are too slack to apply for all that cap-waiver money: it will disappear.

It says in part:

"The General Assembly established the fund so Virginia could shed its label as the country's lowest-paying state for criminal defense lawyers. In the eight months since the fund was established, defense lawyers statewide have claimed about $640,000, or 8 percent, of the money.

The lack of interest is baffling defense advocates, who argued for decades that the money was needed to ensure that poor defendants get the same quality defense as those who can afford a lawyer."

More books

Last weekend, at the in-laws, I read The Hills of Tuscany by Ferenc Mate, an easy and fun book, and, I must confess, a recent offering from Maeve Binchy. To paraphrase Donald Rumsfeld, when you go to the in-laws, you read the books they have.

In the mail this week came The Other Venice: Secrets of the City by Predrag Matvejevic, a sort of mystical work with great photographs, and, inevitably, Chow Venice: Savoring the Food and Wine of La Serenissima, Second Edition.

From the library today, Dana got for me Jonathan Alter's The Defining Moment: FDR's Hundred Days and the Triumph of Hope and some other book I haven't looked at yet.

On lawyer poets, including Virginia's own

This article is about lawyers who are poets.

Virginia had a notable one in Armistead C. Gordon, who was among other things a president of The VBA. You can download free from Google Books some of his work, including this book and this book.

Cousin Mara in Africa, Mark II in soap opera

My cousin Mara, daughter of Dad's sister Lois and step-daughter of Bristol coal lawyer Tim Lowe, has this blog of her experience in Africa, working at a pediatric HIV clinic.

Unrelated to this, MML's son Mark II has landed a role in One Life to Live.

On Florida and Michigan

Watching the events unfold in the campaign, I have had cause to recollect that the Supreme Court has already ruled in Cousins v. Wigoda, 419 U.S. 477 (1975), and Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981), that the Illinois state courts got it wrong "in according primacy to state law over the National Political Party's rules in the determination of the qualifications and eligibility of delegates to the Party's National Convention" with respect to the dispute over the seating of the Illinois delegation to the Democratic National Convention and, with respect to the Wisconsin delegation to the 1980 Democratic National Convention, that Wisconsin could not "compel the National Party to seat a delegation chosen in a way that violates the rules of the Party."

The Cousins v. Wigoda case is another of which some tales are told in John Tucker's book, Trial and Error: The Education of a Courtroom Lawyer, one of my favorites.

So, on the face of things, there is no constitutional impediment to the enforcement by the National Committee of its rules against Michigan or Florida for conducting their primaries too early - which must be why there have been no lawsuits before now. I note that at least in the Illinois case, the impression I get is that the litigants filed the case before tame state court judges to get their injunction, and the federal courts had no role until the cases wert all the way through the state appeals courts.

Death penalty verdict here in Abingdon

Here from the Roanoke paper, here from the Virginia Tech paper, and here from the Richmond paper, are stories about the Washington County jury's recommendation of the death penalty in the case of William Morva. The case was moved for trial from Montgomery County, and tried by the Montgomery County prosecutors.

I can't remember the last time someone was sentenced to death in a case from here in the 28th Circuit, unless it was the late Lem Tuggle, Governor Kaine's old client, one of the famous escapees from Mecklenburg. Or, Arthur Jenkins.