Got an iPhone

The new phone is a wonder, as in I wonder if I will ever figure it out.

On Rules of Evidence for Virginia

Today the VLW Daily Alert reports that the Virginia Supreme Court has adopted Rules of Evidence, and includes an article that suggests that their adoption is a result of Cynthia Kinser becoming the Chief Justice.

It may be evident from some of her opinions (such as the opinion for the Court in Shaheen v. County of Mathews) that Chief Justice Kinser is not as averse to the use of federal precedents as were some of her predecessors on the Court.

Two examples of this former aversion that stick in my head would include Jordan v. Clay's Rest Home, in which the Court by Justice Compton pointedly rejected the federal proof scheme developed over decades for resolving circumstantial cases of employment discrimination, and Doe v. Isaacs, in which the Court again by Justice Compton expressly refused to consider an unpublished Fourth Circuit opinion (by a panel that included Emory Widener).

The only opposition to Rule of Evidence that I ever heard among lawyers was the fear in some circles that it would lead to the adoption of the dreaded Daubert standard for the admissibility of expert testimony, which is viewed as anti-plaintiff. On the difference if any between the Virginia law of evidence and Daubert, I have often recommended this article by Judge Kelsey.

The new magistrate judge for the W.D. Va.

I saw the articles such as this one indicating that Robert Ballou from Roanoke has been selected as the next Magistrate Judge for the Western District of Virginia. Magistrate Judge Ballou will succeed Judge Urbanski.

The one and only time I was ever called for jury duty was an honor code matter at the University of Virginia, and when I showed up for the trial, the honor committee functionary who told me to go home because the trial was canceled was Rob Ballou. I told him that story when our paths crossed over as lawyers some years later and he remembered the case.

Notwithstanding the complaints from some quarters about the conditions for the members of the federal judiciary, it seems that good candidates appear for every vacancy.

Obama nominates a WV lawyer to Fourth Circuit

This White House press release announces the nomination of Stephanie Thacker to a seat on the United States Court of Appeals for the Fourth Circuit, left vacant by the passing of Judge Blaine Michael.

If confirmed, she would be the fifth member of the Court nominated by President Obama.

On roving constitutional watchdogs

In Commonwealth of Virginia v. Sebelius, the Fourth Circuit in an opinion by Judge Motz, joined by Judges Davis and Wynn, held that Virginia lacks standing to bring a pre-enforcement challenge to a provision of President Obama's health care reform law.

Judge Motz wrote that "if we were to adopt Virginia’s standing theory, each state could become a roving constitutional watchdog of sorts; no issue, no matter how generalized or quintessentially political, would fall beyond a state’s power to litigate in federal court. . . . We cannot accept a theory of standing that so contravenes settled jurisdictional constraints." She concluded: "In sum, the significance of the questions at issue here only heightens the importance of waiting for an appropriate case to reach the merits. This is not such a case."

Somewhat similarly, the panel mostly avoided the merits in Liberty University v. Geithner, finding that the federal courts were barred from acting by the Anti-Injunction Act, notwithstanding the disagreement of both parties over whether the sanction for failure to comply with the individual mandate is properly considered a "tax." Judge Wynn concurred on the jurisdictional issue, and Judge Davis dissented, and both added some individual thoughts on the merits.

The incredible shrinking W.D. Va.

Via VLW, the Roanoke Times has this article that says shrinking caseload in the W.D. Va. has led to some diminished funding with the possibility of further cuts in sight.

Consistent with the article, we have been told of the reduced staff in the clerk's offices in Big Stone Gap and Abingdon - including that Libby Sharp is retiring and will not be replaced.

God bless Libby, the great friend of so many former law clerks and others who have passed through the halls of the old building there in Wise County, and also bless the fact that if they again close down that courthouse at BSG, it will not be before she retired.

On Magistrate Judge Sargent

Today's Bristol paper has this profile of Magistrate Judge Pamela Meade Sargent.

The article made me think of this opinion she wrote, which began: "To a child of Appalachia, to see the mountains laid waste, whether by clear-cutting or strip mining, is to witness a dagger plunged into the very bosom from which you sprang and which has sustained you."

Scenes from the Greenbrier

It's a great day at the Judicial Conference.
















And, I got to meet Howard Bashman, as evidenced by this out-of-focus photo attempt:

On new judges at the 77th Judicial Conference of the Fourth Circuit

The new judges at this year's Judicial Conference include several from Virginia. It will be interesting to hear them all speak. The list includes:

The Honorable Michael F. Urbanski
United States District Judge for the Western District of Virginia

The Honorable Arenda L. Wright Allen
United States District Judge for the Eastern District of Virginia

The Honorable Max O. Cogburn, Jr.
United States District Judge for the Western District of North Carolina

The Honorable Ellen L. Hollander
United States District Judge for the District of Maryland

The Honorable James K. Bredar
United States District Judge for the District of Maryland

The Honorable John A. Gibney, Jr.
United States District Judge for the Eastern District of Virginia

The Honorable Catherine C. Eagles
United States District Judge for the Middle District of North Carolina

The Honorable J. Michelle Childs
United States District Judge for the District of South Carolina

The Honorable Richard M. Gergel
United States District Judge for the District of South Carolina

The Honorable Irene C. Berger
United States District Judge for the Southern District of West Virginia

The Honorable Albert Diaz
United States Circuit Judge for the Fourth Circuit

The Honorable James A. Wynn, Jr.
United States Circuit Judge for the Fourth Circuit

The Honorable Barbara Milano Keenan
United States Circuit Judge for the Fourth Circuit

The Honorable Andre M. Davis
United States Circuit Judge for the Fourth Circuit

The Honorable G. Steven Agee
United States Circuit Judge for the Fourth Circuit.

On Ann K. Sullivan

Years ago, I went to the winter meeting of The Virginia Bar Association in Williamsburg and randomly sat at a banquet table with Ann Sullivan and her family (or at least one daughter), and ever since then, I've been a big fan and so I am delighted that she is featured on the cover of this year's Virginia Super Lawyers publication.

Other favorites who have been profiled in Super Lawyers include Anne Marie Whittemore and Bruce Cryder.

On making threats by way of one's own Myspace profile

Today in Holcomb v. Com., the Court of Appeals in an opinion by Judge Elder, joined by Judges Petty and Alston, affirmed the felony conviction of a Virginia Beach man for posting on his MySpace page items that were construed as knowingly communicating a written threat to his ex-girlfriend.

Notwithstanding the fact that millions are dropping off MySpace, evidently it was enough to support the conviction that the comments were posted where the ex was able to see them.

That old adage

In Horvath v. Bank of New York, N.A., Mr. Horvath claimed that only the original lender could sue on the note secured by the deed of trust on his property. The Fourth Circuit, in an opinion by Judge Wilkinson joined by Judges Keenan and Diaz, was unimpressed:

"Negotiable instruments like mortgage notes that are endorsed in blank may be
freely transferred. And once transferred, the old adage about possession being nine-tenths of the law is, if anything, an understatement. Whoever possesses an instrument endorsed in blank has full power to enforce it."

Blame President Bush

There has been much publicity over the fact that the Fourth Circuit panel that will review the challenges to health care reform includes Judges Davis, Wynn, and Motz.

Judge Davis was nominated by President Obama after President Bush failed to fill the vacancy on the Fourth Circuit that resulted from the death of Judge Murnaghan, as reported here:

"Under President Bush, three other nominees were named to fill the vacancy, but each was stalled or rejected — in disputes with Democrats that sometimes involved the Maryland senators."

Judge Wynn was nominated by President Obama after President Bush failed to fill the vacancy on the Fourth Circuit that resulted from Judge Phillips taking senior status in 1994. Three times, President Bush nominated Terrence Boyle, who was never confirmed. In 2007, President Bush nominated Robert Conrad, who also was never confirmed.

Of Judge Motz, I once walked down the stairs with her and her husband the district court judge at my first Fourth Circuit Judicial Conference, and they laughed that I was about to burst out of my skin with nervousness and excitement, and she told me she remembered well her first Judicial Conference - which made me a fan.

On the Planned Parenthood case in Indiana

Here is the much-publicized complaint filed by Planned Parenthood of Indiana over the new law in Indiana that prohibits the state from making any contracts with or appropriating any money for any entity that performs abortions or operates a facility where abortions are performed.

The claim is be based principally to the provision in the Constitution which bar the states from passing any law that impairs the obligation of contracts, the "Contract Clause" of Article 1, section 10. Planned Parenthood claims that it has existing contracts that would be impaired by the enforcement of the new law.

Virginia v. Virginia

In Virginia Office for Protection and Advocacy v. Stewart, the Supreme Court held that a Virginia state agency could sue Virginia officials in federal court.

Chief Justice Roberts dissented, because he thought there was something wrong with the idea that the Commonwealth can sue itself in federal court, despite the Eleventh Amendment and sovereign immunity. For one thing, the Chief Justice noted:

"Whatever the decision in the litigation, one thing is clear: The Commonwealth will win. And the Commonwealth will lose. Because of today’s holding, a federal judge will resolve which part of the Common-wealth will prevail."

A common affliction

In Carnell Construction v. Danville RHA, Judge Kiser wrote in a footnote:

"This case has suffered from excessive briefing. The parties’ briefs supporting and opposing pre- and post-trial motions alone total 660 pages, not including attachments. With attachments—which do not include full deposition transcripts—that number increases to 3,179 pages. Many individual briefs exceed 50 pages. The absence of a page limit in the Western District is not intended as an invitation for protracted argument. As the Fourth Circuit recently stated, “wisdom may reside in recognizing that less is sometimes more and that zealous advocacy need not always part company with forbearance and restraint.” Waybright v. Frederick Cnty., 528 F.3d 199, 210 (4th Cir. 2008). Put more succinctly, “brevity is the soul of wit.” SHAKESPEARE, HAMLET, act 2, sc. 2."

On Circuit Court Judge Chad Dotson

I read in the VLWBlog that the General Assembly has approved Chad Dotson for a vacancy on the bench of the Thirtieth Circuit. Well done, Judge Dotson.

When Judge Dotson was selected for the general district court bench, I wrote this. My first Chad Dotson post was this one.

On the evils of scanned as opposed to converted PDF files

The new Administrative Procedures for electronic filing in the W.D. Va. state the following, twice:

"Scanners should only be used to produce PDF files of documents that cannot be produced electronically. Scanned documents lessen the level of service we provide by slowing down the entire system. We have moved away from the utilization of scanned documents inside the Court for the most part and are requesting parties to do the same when possible."

The new book also says this about orders, which is a little bit different than before I think:

"3. Proposed orders must be submitted as outlined below:
a. A moving party shall submit to the judge, after filing a motion for which no supporting brief is required, a proposed order granting the motion and setting forth the requested relief.
b. Proposed orders must be filed in CM/ECF as a pdf attachment to the Motion (not combined with the motion in one document).
c. The proposed order must also be attached to an Internet e-mail sent to the email address of the assigned judge, in a format compatible with Microsoft Word. Judges will not accept the attachment in .pdf format."

I do not recall that the lawyers were previously required to submit and file proposed orders - in my experience proposed orders are rarely filed in this Court, unlike some others. I have more often e-mailed draft orders as word processing documents to the Court and counsel, when the orders were agreed.

On comity, abstention, and the Tax Injunction Act

In Buchanan County v. EQT, Judge Jones of the W.D. Va. rejected my arguments for the remand of a tax case. The issues were pretty interesting, if somewhat obscure.

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.