Two new judges for the 29th

Daniel Gilbert reports here that Mike Bush and Richard Patterson will get district judgeships in the Russell, Buchanan, Tazewell, Dickinson district.

I never heard of Richard Patterson but that's ok, he probably never heard of me.

The Gilbert article includes some additional gratuitous John Farmer bashing from Senator Puckett, which seems lame.

On being the swami

Here it was written in 2006 that by November 2009, Mary Lynn Tate would be on the Fourth Circuit.

Here it says she has put in for the job.

From NYT to cvilleweekly

This post laments the subpoena served on my good friend Waldo Jaquith by my good friend James Creekmore in connection with some case, and here is the Motion to Quash filed by Waldo himself, and here an outline by Conrad Shumadine from Norfolk says this on the state of the law of a reporter's privilege in Virginia:

"Courts have adopted a three-part test to determine when the qualified privilege attaches. The test balances (1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. Clemente v. Clemente, 56 Va. Cir. 530 (Arlington 2001); Philip Morris Co. v. American Broadcasting Co., 36 Va. Cir. 1, 18 (Richmond 1994); Hatfill v. New York Times Co., 459 F. Supp. 2d 462, 466-67 (E.D. Va. 2006); Hatfill v. New York Times Co., No. CIV.A. 1:04CV807 CMHL, 2006 WL 4500031, at **3-4 (E.D. Va. Nov. 3, 2006)."

On bowling

I think the last time Heath Miller's team played Larry Fitzgerald's team in a "bowl," Heath had a touchdown and his team won while Larry was shut down, and Judge Chad Dotson, Roy Jessee, Mitch Mobley, Will Kimbler, and I were there, for the 2003 Continental Tire Bowl between U.Va. and Pitt.

On the weekend

This weekend in Williamsburg had plenty of highs and lows, the lows relating mainly to the fact that my term on the board of governors of The Virginia Bar Association is ended and I am now official a has-been.

The most powerful part of the weekend by far was the presentation on understanding veterans, with the images and personal accounts from the people who have been over there, and those who have treated the ones who have been over there.

Also, the real estate litigation lecture by some guy from Newport News was fascinating - that outline will get saved to the archives and e-mailed to everyone in the firm (wait, can I do that?) - it was one of those presentations that was so full of useful information that it kind of wore me out.

And, there was the roast of Mike Pace on Saturday night, but they say what happens at Providence Hall, stays at Providence Hall.

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.