On being in jail as a disability

In Lyslord-Duncan v. Bank of America, Judge Wilson of the W.D. Va. dismissed the plaintiff inmate's claim that the bank had violated the Americans with Disabilities Act by refusing to open a bank account because of his incarceration.

Judge Wilson concluded: "Though the court is sure that incarceration is limiting a number of Lyslord-Duncan’s activities, the court is also quite sure that Congress did not have incarceration in mind as a disability when it enacted the ADA."

Perhaps the plaintiff had confused the concept of disabled under the ADA with the notion of a "person under a disability" under the civil procedure title of the Virginia Code, which includes convicted felons during their incarceration, but only in the context of how they can sue and be sued in state court.

On the iPad and the Wise County Commonwealth's Attorney's office

This Findlaw technology blog post highlights the use of the iPad by Ron Elkins and his staff in prosecuting cases in Wise County, described here in a web interview and here in this post from the website for his office. Ron is about the biggest cyberdog around.

Dog custody case

In the case of Whitmore v. Whitmore, decided today, a panel of the Court of Appeals including Judges McClanahan and Haley and Senior Judge Willis addressed the thirteen assignments of error raised by the ex-husband protesting the Circuit Court's award of all right and title to the couple's Welsh Corgi to the ex-wife, without even providing for visitation. The appellant claimed among other things that the Circuit Court failed to consider "the best interests of the dog." The appellee didn't want to share the dog because she didn't want to have anything more to do with her ex-husband.

The dog is not named in the opinion.

I can't give advice to Mr. Whitmore, but in my own case I rooted around Petfinder until I found another who looked about like the last two, and she's had a pretty good life these past twelve months.

On Chief Justice Hassell

I learned today of the death of Chief Justice Hassell. There are reports here from the Norfolk paper and the Richmond paper. He was a strong character and an interesting man, a very compelling figure in Virginia's legal history for many reasons.

I met him once and told him of my adventures before the Supreme Court, which he found amusing. Later, on a trip to the law school at Grundy, he told me this story.

Here is his last speech on the state of the judiciary as Chief Justice, in which he relates much of his own history and experience, beginning on page 8.

A picture can say a thousand words, and none of them are hearsay

Today in Bynum v. Com., the Court of Appeals in an published opinion by Judge Petty, joined by Judges Elder and Beales, held that the trial court in a case where the defendant was convicted of possessing drugs within 1,000 feet of a school did not err in admitting over the defendant's hearsay objection the aerial photograph used by police to prove the defendant's proximity to the school.

The Court reasoned, in part, that photographs are not hearsay because there is no declarant:

"As with a caller ID and a call trap, there simply is no out-of-court declarant involved in this photograph. Officer Johnson used an aerial photograph of the Brighton Elementary School property and surrounding area to measure the distance between the school property boundary and the location where Bynum was observed with heroin and arrested. An aerial photograph of a geographic area does not contain 'simply the repetition of prior recorded human input or observation.' Tatum, 17 Va. App. at 588, 440 S.E.2d at 135. It is not the recordation or compilation of another human being’s assertions; it is not a communication of input from another person. Rather, it is simply a technological reproduction of an existing reality. Cf. Penny, 6 Va. App. at 498, 370 S.E.2d at 317 ('The scientific advances of modern technology have enabled the call trap device to make and record the occurrence of electronic events.'). As such, its 'reliability does not depend on an out-of-court declarant’s veracity or perceptive abilities.'"

Why stick the taxpayers with these claims?

Turning a good idea on its head, Delegate Janis has proposed a bill to amend the Virginia Fraud Against Taxpayers Act, Va. Code 8.01-216.1 et seq., to overrule the holding from the Supreme Court's decision in Ligon v. Goochland and waive the sovereign immunity of the Commonwealth and its counties and cities under the Act.

In Ligon, the Supreme Court held that the Act does not waive the immunity of Virginia's counties for wrongful discharge claims based on retaliation against whistleblowers.

In H.B. 1399, Delegate Janis proposes to insert language that would eliminate the sovereign immunity defense. The proposed waiver of sovereign immunity is entirely at odds with the policy of the Act. The taxpayers should be not be victimized a second time, suffering first whatever fraud the whistleblower spotted, and then having to pay in addition for the whistleblower's lawsuit.

Unlike private sector employees, government employees are already protected to some degree by the First Amendment, made applicable to the states by way of the Fourteenth Amendment, which prohibits state actors from retaliating against employees for speech on matters of public concern, which might include the much of the same subject matter as what is addressed by whistleblower protections of the Virginia Fraud Against Taxpayers Act.

On Judge Thomas Horne

In this article, a local newspaper for Loudoun County declares Circuit Court Judge Thomas Horne its "citizen of the year," and explains why in extensive detail. Among other things, Justice Mims credits Horne as the primary contributor to the bench book for circuit court judges.

On the NiSource royalty litigation in the W.D. Va.

In the famous Tawney case from Roane County, West Virginia, a group of royalty owners obtained a $405 million jury verdict against a group of natural gas companies on a variety of theories, including that the gas companies deducted more than they should have done from the sales price of the gas in calculating royalties and that the companies wrongfully included the below-market advance sales of gas in calculating royalties. Last year, in Kentucky, there was a class action settlement of claims related to some of the same transactions, in Thacker v. Chesapeake Appalachia.

The advance sales are an interesting story, that I have read a little bit about in the past. They are interesting because of the tie-in with Enron, the poster child for corporate greed. The record of one series of U.S. Senate hearings into the role of financial institutions in the collapse of Enron, which includes some discussion of the Mahonia transactions that also involved NiSource, can be accessed here. In those hearings, Senator Levin explained in his opening remarks:

"We will show how the banks arranged for Enron to carry out these so-called prepays by using offshore shell companies which the banks controlled, like Mahonia and Delta Energy--companies which have no employees, no offices, and operate in secrecy jurisdictions, that make it tough for law enforcement to uncover or understand their relationships to the banks behind them.

The offshore entities were passthroughs, controlled by banks, and helped disguise the loans so that they wouldn't show as debt on Enron's financial statements. Those offshore entities were not the independent entities which they needed to be in order for the promises of future delivery of commodities to them to be legitimate prepays. We will also hear how the banks acted to limit public disclosure of Enron's prepay obligations."

In other words, the claim is that transactions were set up to look like pre-paid sales of natural gas, when in fact they were loans. NiSource was not connected with Enron, but it allegedly engaged in similar transactions as those described by Senator Levin. The alleged effect on the royalty owners is that these prepays mixed in with real sales had the effect of reducing the average price on which the determination of royalties was based.

Claims of a similar nature as in the West Virginia and Kentucky cases have been raised in the case of Healy v. Chesapeake Appalachia, and in this opinion, Magistrate Judge Sargent dealt with the gas companies' motion to dismiss, which raised among other things the issue of the statute of limitations and whether there could be any tort claims for failure to pay accurate royalties. Judge Sargent recommended that the plaintiff's claims can go forward, for the most part.

One of the issues was the statute of limitations. The Defendants argued that notwithstanding the fact that they were obligated to pay royalties in installments, the breach if any occurred years ago and so the plaintiffs' cause of action accrued all at once. We argued a similar limitations issue years ago in United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998), with somewhat better success. In that case, we argued that "[e]ven with respect to contracts requiring installment payments, when there is a repudiation or "total breach" of contract, the plaintiffs must bring suit on their whole claim in a single cause of action, and cited this quote from Corbin:

Suppose next that the contract requires performance in instalments or continuously for some period and that there has been such a partial failure of performance as justified immediate action for a partial breach. If this partial breach is accompanied by repudiation of the contractual obligation such repudiation is anticipatory with respect to the performances that are not yet due. In most cases the repudiator is now regarded as having committed a “total” breach, justifying immediate action for the remedies appropriate thereto. In determining the damages recoverable in such an action, it is necessary for the court to look into the future. In spite of the uncertainty involved in this, the trier of fact is permitted to make an estimate to be added to the damages awarded for the actual non-performance that has already occurred. In most cases this remedy is regarded as adequate and the injured party is allowed only one action for his wrong. The non-performance plus the repudiation constitute one and only one cause of action.

4 CORBIN ON CONTRACTS § 954, pp. 831-32.

Probably the most interesting issue in the opinion from the oil and gas lawyer's perspective is whether the plaintiff can bring claims for breach of implied duties. On the one hand, Virginia is not a big implied duty state - the tendency in Virginia law moreso than in more "liberal" jurisdictions is to enforce contracts as written. On the other hand, there is a wide body of case law in the jurisdictions where oil and gas production has been a way of life for over 100 years dealing with the implied duties of gas producers. Judge Sargent concluded: "I hold that Virginia courts would recognize an implied duty on the part of oil and gas lessees to operate diligently and prudently, including a duty to market the gas produced."

Interesting to me is the discussion of offensive collateral estoppel. In the Buchanan County RICO case, Judge Jones was convinced to apply offensive collateral estoppel in favor of the plaintiff and against the defendants on the issues necessarily determined by their criminal convictions. Judge Sargent concluded that the issue of collateral estoppel against the gas companies based on the outcome of the Tawney case would have to be determined at a later stage of the case.

On snow days

In the winter, I hear talk about schools cancelling classes because of snow.

One part of that discussion is that school officials are afraid of liability. In Virginia, the liability of school employees and school boards for simple negligence is limited by sovereign immunity and the school bus insurance statute, Va. Code 22.1-194, as Judge Wilson held in this opinion granting a motion to dismiss claims against individuals related a school bus accident in Botetourt County.

Another part of the discussion is what is the effect of school days on learning. The answer according to this article is that school days cause lower test scores.

The Media General article on Justice Kinser

I finally got around to checking out the fine article on Justice Kinser, who is becoming the Chief Justice of the Virginia Supreme Court. It seems like not so long ago that she joined the Supreme Court, yet with the retirement of Justice Koontz, all the other justices have less tenure than she does, but for current Chief Justice Hassell.

One fact in the article that I had never heard was that Judge Samuel G. Wilson of the W.D. Va. was one who urged her to apply for the Supreme Court position in 1997, but then Judge Wilson was U.S. Magistrate at the time when Justice Kinser was clerking for Judge Williams, and so perhaps they have known each other for many years.

Whatever works

In this VLW post, a Virginia legislator is cited for the proposition that the Governor proposed taking money from the Virginia State Bar to fund judgeships because the Virginia State Bar complained about the lack of funding for judgeships.

There ought to be a constitutional amendment that says the legislators are thrown out and barred from public office if they don't pass a budget and fill all the judgeships, in every session. Having said that, it is hard to imagine that the VSB surplus could be spent on anything more important.

Enzyte and the warrantless search (or is it seizure?) of e-mail

The Sixth Circuit ruled today in U.S. v. Warshak that the Fourth Amendment prohibited federal law enforcement from obtaining the defendant's e-mails from his internet service provider without a warrant. The case is a big deal to legal scholars, and is also interesting because the defendant was the owner of the company that puts on those late night ads with Smilin' Bob.

The FRCP amendments

The latest amendments to Rules 26 and 56 went into effect on December 1. The Rule 26 amendment limits the discoverability of draft reports by expert witnesses. The Rule 56 amendment is supposedly only procedural. Rule 56(b) specifies a default deadline for filing summary judgment motions, as 30 days after the close of all discovery. The typical scheduling order in the W.D. Va. shortens that period. It requires parties to cite to particular parts of the record to show the absence or presence of a genuine dispute of material fact, which seems odd. It says the Court can rely only on cited materials, or may use other parts of the record. It allows the Court to grant summary judgment for non-movants, on notice to the parties.

A further explanation of the rationale for the changes to the Rules is contained in this excerpt.

Judge Hudson strikes down health insurance mandate

I've read Com. v. Sebelius, and what struck me on the first reading was that Judge Hudson seemed to say that if the Congress and the Administration had characterized the individual insurance mandate as a revenue measure from the get-go, the outcome might have been different. "In concluding that Congress did not intend to exercise its powers of taxation under the General Welfare Clause, the Court's analysis begins with the emphatic denials by the Executive and Legislative branches that [the penalty for not buying health insurance] was a tax," Judge Hudson wrote.

In other words, by hedging on the extent to which the penalty for failure to buy health insurance was an outright money grab by the United States, the proponents of the scheme forfeited a potential basis for upholding its constitutionality.

On the constitutionality of the health insurance mandate

GMU law professor Ilya Somin has this take on the constitutionality of the health insurance mandate, which concludes if nothing else that the challenges to the mandate are not frivolous and what the law requires is something new, for which there is no binding precedent upholding its legality. Professor Barnett from GULC has this paper that concludes the individual mandate is unconstitutional.

By contrast, in this Bristol paper article about the lawsuit against the health insurance mandate filed by Gil Davis and Strother Smith on behalf of Smith, Tucker Davis and others, W & L law professor Tim Jost describes the claim as frivolous.

There is a website devoted to the litigation of this issue, called Health Care Lawsuits.

Court of appeals' "digital brief" guidelines

I read with some interest the "digital brief package" from the Virginia Court of Appeals. What is required is something quite different from the ordinary files we print to PDF and upload to federal court every day.

I enjoyed particularly the checklist of reasons for rejecting the digital briefs, such as "Paper Brief was not the same Brief on the CD."

Another part of what makes this interesting is that the Court evidently requires digital briefs, yet there is apparently no reference to such a requirement in the Rules, which were just amended - unlike in Rule 5:26(e), which says "(e) Copies for Filing. One electronic version, in Adobe Acrobat Portable Document Format (PDF) format, must be filed with the clerk of this Court and served on opposing counsel, unless excused by this Court for good cause shown."

In my opinion, most Virginia lawyers either lack the software necessary to insert bookmarks into PDF files or would not know how. I sometimes insert bookmarks to navigate around complaints and long contracts that other people send me.

The cheaper than Adobe Acrobat alternative software that I use is called NitroPDF, which is $99 as opposed to $299 for Acrobat 9 standard or $499 for Acrobat 9 pro. I think it could do what is required but I guess I'll send the work to one of the print shops in Richmond.

She said yes

Elliott Lawson & Minor is announcing this week that Dawn Figueiras has joined the ownership of the firm.

This is a great thing, as she is one of the best lawyers and best people I know.

On Justice Carrico

This article from the Richmond paper on Chief Justice Carrico of the Virginia Supreme Court at age 94 includes some interesting views on his five decades as a justice, chief justice, and senior justice. The article suggests that his most famous opinion as a justice was in the Loving case, affirming Virginia's ban on inter-racial marriage, the case that was then reversed by the United States Supreme Court, but that he makes no apology for applying the law as he found it at that point in time.

On sentencing in the W.D. Va.

The Roanoke Times had this interesting article on the role of the federal probation office in federal sentencing in Western District of Virginia cases. It quotes among others Judge Conrad and Judge Turk - and Paul Dull, distinguished graduate of the Appalachian School of Law and a fine fellow. The occasion for the article was the fuss raised by defense counsel in a case where the confidential part of a pre-sentence report was accidentally made available to him.

Wait, do I still have some of these?

The Virginia Gazette reports here on a William & Mary grad who returned an overdue book he checked out from the Williamsburg library in 1975. He told the library his lawyer had advised him to turn himself in. There was no fine since the library's records did not go back so far.