Our Fair City listed in the World's Top Seven

This article lists Bristol, with this entry -

"Bristol, Virginia, USA. As a first time honoree, Bristol made an impact after taking on incumbent telcos in court and the state legislature to win the right to deploy a fiber network called OptiNet. Conceived as a backbone serving government and schools, OptiNet has grown into a fiber-to-the-premises network for business and residents in Bristol and four neighboring counties. It has also attracted more than $50 million in private investment, including the region's first technology employers, and improved rural education and healthcare by connecting local providers to leading institutions."

Judge Wilkinson asks President Obama to go easy on the Fourth Circuit

I read this commentary by Judge Wilkinson, which may be the least comprehensible thing I ever read that he wrote. Who can tell me what he is saying?

For qualified immunity fans

Today, the Supreme Court zigged in another direction on an issue where it has both zigged and zagged, and that is the order of answering the two questions that make up the question of qualified immunity. One question is, does the plaintiff have a claim under the Constitution? The other question is, did the defendant violate the clearly-established constitutional rights of the plaintiff, of which a reasonable government official in his or her position should have known?

If the courts have to answer the merits question first, then a bunch of advisory opinions about constitutional issues get generated. If the courts can answer the "clearly-established" question first, then the law never gets any clearer, and more defendants win.

The conclusion in Pearson v. Callahan is that the courts can go whichever way works best.

You can click here to see some of what I have written in the past on qualified immunity - one of my favorite topics, and the subject of an article I wrote for the VADA some years ago.

A rural Virginia lawyer joke

Here it is, from the Washington Law Examiner.

Harsh.

Well done, guys

Lucas Hobbs and Jim Elliott from our firm were counsel for the successful appellant in the case of Virginia Highlands Airport Authority v. Singleton Auto Parts, where Justice Millette described the issue as this:

"We are presented with the novel issue whether the easement constitutes a taking of airspace requiring compensation when the property was already subject to preexisting restrictions on development imposed by the ordinance."

Civil litigation in federal court increased in 2008

A report by Law360 cited here and elsewhere says that federal court litigation was on the rise in 2008, including more employment law and products liability cases, along with more antitrust claims, more corporate bankruptcies, and more class actions.

Worth reading

From December, the Lynchburg paper reports on the retirement of Circuit Court Judge Samuel Johnston.

In Buckingham County, someone has sued the Hook for defamation.

In Tazewell County, Judge Vanover upheld the immunity of the County and the School Board in a case over the death of a student.

The long-running Fairfax County case over Episcopal church property is described again here.

The Norfolk paper investigates here why it is that Amazon.com does not collect Virginia sales tax.

On Fourth Circuit vacancies

Jonathan Adler says here the Democrats should do like was done with Judge Gregory and renominate and confirm Peter Keisler to the D.C. Circuit, citing this article by Quin Hillyer, which is also cited in this post on the Committee for Justice Blog.

Here the NRO editors suggest the same idea as to any of Bush nominees to the Fourth Circuit, including Judge Robert Conrad, Rod Rosenstein, Steve Matthews, and Judge Glen Conrad of the W.D. Va.

Somewhat more traditionally, posts here and here speculate on North Carolina Democrats who might be appointed to the long-vacant N.C. seats on the Fourth Circuit.

What are the First Amendment rights of donors in support of referenda?

In California, they say that the opponents of the recently-passed referendum to re-outlaw same-sex marriage are tracking down those that gave money to advocacy groups in support of the measure and trying to make them regret their position.

So, this lawsuit has been filed, claiming that the California law requiring disclosure of such contributions is a violation of the First Amendment rights of the donors, particularly because none of the rationale for intruding on the speech rights of donors in the usual campaign setting applies when there are no candidates to be corrupted by the cash.

I can understand that aspect, although I think the outcome of the suit depends on whether the issue comes down to standard of review - is this an incursion on First Amendment rights which must be narrowly-tailored or merely something that requires a rational basis. This I wonder.

Supreme Court history

Via John Q. Barrett, here are the proceedings of a conference of former Supreme Court clerks, discussing the 1950-1951 term, and including therein some general background of the Justices and their work.

Among the tales told is this one, about Justice William O. Douglas:

"On the thirteenth anniversary of his joining the Court, he had a little cocktail party in chambers just for those of us who were on staff. He made martinis the way he used to make them for FDR and told us about how times were back in the ‘30s in Washington where he’d been working. He remembered I’d grown up in Kansas City, Missouri, and so he recalled that he had a speaking engagement there one time and took his dog Frosty with him and was going to stay at the best hotel in town. When he got there, the hotel refused to admit him because he had his dog. So the two of them ended up in a motel. When the Chamber of Commerce found out, they were so embarrassed they sent a case of dog food to Frosty. Douglas said that thereafter, Frosty would never eat any other kind of dog food."

Lynn Dougherty's son - from Gallaudet to David Letterman

This story about the deaf son of a Bristol lawyer from the Tennessee side is really cool.

On blogging in 2009

There will be some, sooner or later.

Last week, I took off for a federal court hearing in Beckley, turned around when I heard it was cancelled, then found out it was rescheduled for the next day, turned around again and headed back up there.

That's just one adventure of many, already in 2009, but not much of it fit for this blog.

Bristol paper declares against cheap power, expensive power

Online today from the Bristol paper, one story denouncing the cost to consumers of electricity, another story bashing the coal business and looking forward to the "post-carbon era."

Meanwhile, the NYT reports here that burning coal at home is making a comeback, while declaring in favor of a gas tax.

On Straight Creek in Lee County

This month's Virginia Lawyer magazine has an article titled: "Testing the Boundaries of the Clean Water Act on the Virginia-Kentucky Border: The Coal Industry’s Proposed Use Attainability Analysis for Straight Creek in Lee County, Virginia."

The magazine says this article was written by someone who has worked for the Southern Environmental Law Center and the Appalachian Citizens' Law Center over in Whitesburg.

On government officials

The NYT opines here that prosecutors should say less about the Illinois governor.

Reports here and here say the Page County sheriff gets to keep his title for now.

In Norfolk, a lawsuit has been filed to bar the vice mayor from serving as chief deputy treasurer, claiming there is some conflict of interest.

On coal

Coal is my worst nightmare, says the next Energy Secretary.

In Kansas, they are litigating over a coal power plant.

In Surry, there is opposition to a proposed coal power plant.

In Abingdon, they are getting a Clean Coal and Natural Gas Energy Center.

In West Virginia, there is skepticism about a $3 billion coal to gas plant.

Some lending institutions are talking about divesting from coal, as if it were the new apartheid.

Thomas Jones recollects his parents' working in the mines.

In Harrisonburg, it's hard to get a lump of coal.

More on dissemination of judicial evaluation data

"With respect to dissemination of information on performance evaluation, two lessons can be drawn. First, transparency about the evaluation process and specific evaluation results benefits both the public and the judiciary. The public benefits because it is able to develop an appreciation for the role of the courts beyond the outcome-based information it is likely to receive from the mainstream media or special interest groups, and can make more informed votes in judicial elections. The courts benefit because increased public awareness of the proper modes of judicial measurement fosters an appreciation for the challenges judges face, as well as the high caliber of judges in the community. It also makes judicial elections less likely to be decided by specific issues or case outcomes, and ultimately creates a public atmosphere more accepting of judicial independence.

The second lesson is that broad dissemination is almost always preferable to limited dissemination. Making information about individual judges available to the public allows ordinary citizens to become more familiar with the judges who serve them, and to appreciate the individual strengths and weaknesses of each judge. Good judges rightly will be praised, and weaker judges will feel appropriate pressure to improve their performance. More importantly, broad dissemination allows the public to evaluate judges on neutral, relevant criteria, rather than having to rely on reports about specific case outcomes. Even summary information about the state of the judiciary as a whole assists the public in understanding the relevant metrics for measuring judicial performance. By contrast, maintaining the confidentiality of performance evaluations fails to educate the public about appropriate measurements, allows less reliable or less comprehensive surveys to fill the void (with potentially unwelcome results), and arouses public suspicion about the real quality of the judiciary.

There is some question as to whether transparency can hinder the self-improvement function of JPE. Some judges, particularly those new to the bench, may benefit from a confidential evaluation early in their service, to allow them privately to improve upon areas of weakness. There may be other occasions in which a judge’s improvement on the bench may be promoted by keeping his individual evaluation confidential. Too much confidentiality, however, may provide less incentive for judges to improve; release of information to the public is a great motivator. Therefore, even if evaluations are occasionally kept confidential, more often than not they should be made publicly available. All states should develop a dissemination strategy that maximizes transparency without sabotaging self-improvement."

Institute for the Advancement of the American Legal System, "Shared Expectations: Judicial Accountability in Context," accessed via the National Center for State Courts Judicial Performance Evaluation Resource Guide.

What I get out of this and like articles is that judicial evaluation when based on the proper criteria should get the widest-possible distribution to promote a more rational and principled discussion of retention issues, as opposed to some of the nonsense we have observed from time to time. The article suggests that judicial independence is most threatened when decisions about judges are made in the absence of informed debate.

In other words, the only people who have to worry about sunlight on these judicial evaluations are the judges whose evaluations are bad and legislators who ignore what the evaluations say. And so, the question arises, why wouldn't the Virginia Supreme Court want the General Assembly to be both empowered - and constrained - in its evaluation of judges by objective information of the best and most relevant kind - in a way that the public also can decide whether the legislators are doing the right thing? One would expect that failure to disseminate information about bad judges mostly has the effect of protecting the employment of bad judges, to the detriment of everyone else. Dissemination of positive information about good judges would make it harder for legislators to fail to keep them.

Jefferson might have agreed that what Justice Brandeis wrote in Whitney v. California - that the remedy for bad speech is more speech - applies as well to judges, but then again he might have said that Federalist idiot John Marshall sucks and we need to run him off the first chance we get.

The end of the Sierra Club case

Here is Judge Williams' opinion at the end of the Sierra Club case.

And, we won the case, so I guess there nothing more to be said.

On evaluating judges

The American Bar Association publishes something called "GUIDELINES FOR THE EVALUATION OF JUDICIAL PERFORMANCE WITH COMMENTARY."

Part of what it says is this:

"Guideline 3-4. When judicial evaluations are used to inform decision makers regarding the continuation of judges in office, results should be made readily available to those responsible for continuation decisions, including voters, governors, legislatures, and commissions.
-4.1. Those responsible for reappointing, reelecting, or retaining judges should be provided with objective summaries of evaluation results for each judge and an explanation of how to interpret the results.
-4.2. If evaluation results are provided to an individual or entity responsible for continuation decisions, and those results include assessments of a judge’s overall performance or recommendations as to whether a judge should be continued in office, judges should have an opportunity to review and respond to the evaluation report before it is disseminated.
-4.3. If evaluation results are publicly disseminated, and those results include assessments of a judge’s overall performance or recommendations as to whether a judge should continued in office, judges should have an opportunity to review, respond, and meet with members of the evaluation body before the results are made public."

Something else the paper says is this:

"Judicial evaluations based on appropriate criteria and reliable and valid methodology . . . pose no threat to the independence of the judges being evaluated."

The VLW Blog has this post which suggests the making of a constitutional crisis, as the Chief Justice and the General Assembly dicker over the limitations on the use of judicial evaluations in Virginia. Under Va. Code 17.1-100, "The Supreme Court, by rule, shall establish and maintain a judicial performance evaluation program that will provide a self-improvement mechanism for judges and a source of information for the reelection process. By September 1 of each year, the Supreme Court, or its designee, shall transmit a report of the evaluation in the final year of the term of each justice and judge whose term expires during the next session of the General Assembly to the Chairmen of the House and Senate Committees for Courts of Justice."

I have filled out a bunch of these judicial evaluation forms, including most of the circuit court judges in the 28th, 29th, and 30th circuits. If the General Assembly can't use them, then what a waste - maybe I should just start throwing them in the trash.

On federal questions

Here from the Weekly Standard is another article commenting on the comments of Judge Wilkinson of the Fourth Circuit and Judge Posner of the Seventh Circuit on the Supreme Court's D.C. gun decision in Heller.

Here is somebody's account of the Fourth Circuit's decision last year in U.S. v. Buckner, regarding search of a home computer, and affirming a decision by Judge Wilson of the W.D. Va.

Judge Richard Williams ruled against the Commonwealth in the case of the soldiers' ballots from overseas, according to articles such as this one. This story says the General Assembly is going to modify the laws prohibiting the wearing of campaign stuff in the polling place, which laws might otherwise violate the First Amendment.

Here is a goofy Washington Post story on squabbling among my good friends on the Sixth Circuit, and here are here are comments on the Post's story.