Wednesday, December 31, 2003

Were there Republicans checking out Boucher's website?

This story ("Boucher has to rethink links," 12/31/03) from the Richmond paper says that somebody figured out that there were two improper links on Congressman Boucher's campaign website, improper in that they went to pages on his official House website. A Republican spokesman declared, more or less, that because of these links, people should not vote for Boucher.

I wish I was around when my old friend Mark Graham heard about this story.

Tax amnesty yields $98.3 million for Virginia

The Richmond paper reports here ("Va. gets tax evaders bonanza," 12/30/03) on the greater-than-expected proceeds from Virginia's tax-amnesty program.

DUI costs $20,000?

This article ("Drunken driving is expensive," 12/30/03) from the Richmond paper describes the real costs of a drunk-driving conviction in Virginia.

Atkins still on death row

This AP article describes the ongoing proceedings surrounding the death sentence given to Virginia inmate Daryl Atkins, whose case led to the Supreme Court's ruling that retarded persons cannot be executed.

Spammers take round in AOL case

This article describes a victory for spammers in a ruling by Judge Hilton in the E.D. Va. in a case brought by AOL in Virginia against bulk e-mailers in Florida. Despite allegations of conspiracy, the court concluded there was no Virginia jurisdiction over the defendants.

Monday, December 29, 2003

Allowing non-drinkers to carry guns in Tennessee bars

From back before Christmas, this report ("Law allowing carrying concealed gun in bar proposed," 12/19/03) in the Bristol paper describes a legislative proposal in Tennessee to allow bar patrons to carry their concealed weapons into the bars with them. The article says that "[t]he proposed law would allow people with permits to carry concealed weapons to take their guns into restaurants or bars as long as they did not consume alcohol."

Ah, a seizure-less malicious prosecution case brought under section 1983

Some time ago, I was ruminating over case law about the relationship between malicious prosecution and constitutional claims under section 1983. It looks like lawyers Tim McAfee and Henry Keuling-Stout are fighting over one now, as the plaintiff who has filed suit for being summonsed for not paying the landfill fee in Wise County was not arrested, according to this report in the Coalfield Progress.

The article says that Judge Williams denied the defense motion to dismiss and converted the motion to one for summary judgment, so we'll have to see whether he has anything to say on this question.

No appeal in BSG annexation case

The Town of Big Stone Gap will not appeal its ignominious defeat in the recent annexation case, according to this report in the Coalfield Progress, which also reports here that the town's legal fees were just over $500,000, mostly to the Richmond law firm of Troutman Sanders.

Southwest Virginia cops who won't eat donuts

The Roanoke Times has this report ("Doughnuts and cops - you gotta laugh," 12/26/03) on Southwest Virginia policemen who refuse to be seen eating doughnuts while in uniform.

Virginia inmates reform dogs

The Washington Post has this story ("In Prison, Reclaiming Forsaken Lives - Va. Inmates Help Antisocial Dogs Become Adoptable," 12/27/03) on a program in which Virginia inmates teach dogs to behave.

Opposing views on the Malvo verdict

The Baltimore Sun opined here that the Malvo verdict was just, while the writer of a letter to the editor posted here says the Malvo verdict was so bad, Saddam Hussein will want his case heard in Virginia.

Verizon looks for local phone deregulation in Virginia

The Times-Dispatch reports here ("Verizon set to seek deregulation plan," 12/27/03) that Verizon, the largest provider of telephone service in Virginia, will seek new laws from the General Assembly deregulating local telephone service. In the article, an State Corporation Commission official says that under existing law, Verizon could make a pitch before the SCC for relief from the regulations where it can show competition.

Cold Mountain locals bummed by Cold Mountain the movie

The locals in Western Carolina think their home is nothing like Romania, where Cold Mountain was filmed, according to this report ("Left out in the cold," 12/28/03) in the Knoxville paper.

Schapiro plays Santa

Jeff Schapiro offered this Christmas list for Virginia politicians.

Still at-will in Virginia

In this story ("Employers Have the Right to Fire Away", 12/28/03) the Washington Post says that in Virginia, employment at-will remains the rule, rather than the exception.

Tuesday, December 23, 2003

Nothing new here until some time after the Continental Tire Bowl on December 27.

Sunday, December 21, 2003

Of Jefferson Davis, Robert E. Lee, Allen Iverson and Julian Bond

This AP article was in the paper here today.

I noticed that at one point, the article attributes to U.Va.'s own Julian Bond the following statement: "If it had been up to Robert E. Lee, these kids wouldn't be going to school as they are today. They can't help but wonder about honoring a man who wanted to keep them in servitude."

On down the page, the article notes that Ernestine Harrison, who is leading the fight to have a Jefferson Davis school renamed, "dropped an effort to rename Robert E. Lee Elementary in Hampton after learning that Lee was reluctant to battle the North and did not own slaves." Apparently, Ms. Harrison and Professor Bond have different viewpoints on R.E. Lee.

The article quotes one parent as saying the Jefferson Davis school should not be renamed for basketball player Allen Iverson.

Southwest Virginia creditors pursue international pipeline builder

This article from the Quad Cities online describes the efforts of subcontractors and others working on a pipeline project in Southwest Virginia to record mechanic's liens and secure injunctive relief against the assets of an international pipeline that owes its creditors $120 million, according to documents filed in the divorce case of the William Murphy, president of the company, Murphy Brothers, Inc.

Taxes, morality, beavers, and Nittany Lion license plates

Hugh Lessig from the Daily Press has this lively summary of the agenda for the coming session of the Virginia General Assembly.

Parole board member rues decision's after death of parolee's girlfriend

Parole has been abolished in Virginia, except for those put in prison before the early 1990s.

This article from the Daily Press reports the death of a parolee's girlfriend, which has caused one member of the Virginia Parole Board to conclude that the board made a bad mistake in letting the man out of prison early.

Saturday, December 20, 2003

False Claims Act, unfiled tax returns, FCRA, gun shots and dischargeability, domain name deals

In Friday's opinions from the Fourth Circuit:

In U.S. ex rel. Harrison v. Westinghouse Savannah River Co., the Fourth Circuit in an opinion by Judge Shedd joined by Judge Williams and Senior Judge Hamilton affirmed a jury award in a qui tam action against a government contractor under the False Claims Act. The Court rejected arguments that the company's false representation to the government was not material, and that it lacked the requisite intent, and that plaintiff's fraud evidence went beyond the pleadings. The Court also rejected the plaintiff's issues regarding the limits of what he was awarded in damages, expenses, and attorneys' fees.

In Moroney v. IRS, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Traxler and District Court Judge Payne, held that the belated and half-hearted efforts of a bankruptcy debtor to file income tax returns were insufficient to allow for a discharge of tax debts.

In Ausherman v. Bank of America Corp., the Fourth Circuit in an opinion by Judge Motz, joined by Judge Traxler and Judge King, held that the defendant have acted negligently or deliberately to violate the Fair Credit Reporting Act. The defendant had no good reason for accessing the plaintiffs' credit reports, but presented evidence that it didn't mean to do it, basically that there was some computer or data entry error between the defendant and the credit reporting agency.

In Parsons v. Parks, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams and Shedd and Senior Judge Hamilton reversed the ruling of Judge Williams of the W.D. Va. and sided instead with the ruling of the bankruptcy court that a judgment against the debtor for shooting a guy three times was not dischargeable in his bankruptcy case. I was about to say that I don't recall other cases where Judge Karen Williams of the Fourth Circuit voted to reverse Judge Glen Williams of the W.D. Va., but come to think of it, I was among a legion of lawyers in one such case, almost 10 years ago.

In Network Solutions, Inc. v. Hoblad, B.V., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Duncan and Traxler affirmed the trial court's decision in a case about an alleged breach of contract relating to the sale of second-level domain names. The opinion explains that "SLDNs are the names immediately to the left of 'top-level domain' designations such as '.com' and '.org'—for example, the name 'google' in ''" The Court found that the defendants had contractually agreed to jurisdiction in the Rocket Docket of the E.D. Va., and that they had breached their contracts by failing to pay for some 4,000+ SLDNs.

Summary judgment affirmed in unregistered securities case

In Partington v. Pennington, the Fourth Circuit in an opinion by Judge Luttig, joined by Judge Shedd and Senior Judge Michael of the W.D. Va., affirmed the rulings by Judge Turk in a complex case brought by a group of clergy, lay persons, and churches, claiming they were ripped off in the investments made on their behalf. Judge Turk ruled, among other things, that the lead plaintiff was without standing to raise some of its claims under the federal securities laws.

The Court described the allegations about what happened to the money:

"Partington claims that, in 1999, one R. Ray Levy approached Charterhouse and induced it to purchase viatical insurance contracts as investments for the trusts Charterhouse administered, promising above-market returns. Clients of Charterhouse apparently invested more than one million dollars in these viatical contracts; it invested more than $34,000 in funds from the Partington trust. The viatical contracts were purchased from Financial Federated Title & Trust ("FinFed") using a broker controlled by Levy. In late 1999, Partington received notice that the entire investment from his trust in the viatical
contracts was lost. All in all, of the 115 million dollars nationwide that was given to FinFed for the purpose of purchasing viaticals, only about six million dollars was actually so used.

Allegedly, Levy also persuaded Charterhouse to advise its clients to purchase senior notes from defendant U.S. Capital Funding, Inc. ("U.S. Capital"), a company Levy controlled, which notes purported to fund U.S. Capital’s loans to well-known companies. Partington claims that Charterhouse used over $52,000 in funds from the Partington trust to purchase such a note from U.S. Capital, and that Charterhouse defendants persuaded numerous other ministers to invest in these notes. He asserts that members of his proposed class purchased over seven million dollars of these notes. U.S. Capital is now in bankruptcy, and has refused Partington’s requests for payment on the note. Partington claims the investments made for the benefit of the Partington Trust all were made after consultation with and direction from him, without any input from his church."

Fourth Circuit rules for CLEC in contest over interconnection agreement

The Telecommunications Act of 1996 allows competitive local exchange carriers access to the assets of the incumbent local exchange carriers, to provide local telephone service. The Act provides for state utility commissions to arbitrate the interconnection agreements between the CLECs and ILECs. In MCImetro Access Transmission Services, Inc. v. BellSouth Telecommunications, Inc., the Fourth Circuit in an opinion by Judge Williams, joined by Judge Luttig and Judge King, reversed the trial court's judgment and held in favor of the plaintiff CLEC that the arbitration award by the North Carolina utilities commission violated the Act as construed by the FCC on a number of issues and remanded the case for reconsideration of another in light of a recent FCC ruling.

One interesting aspect to the whole scheme is that the state utility commissions decide these interconnection disputes, but their views are entitled to no deference, instead the Court's task was to measure the North Carolina decision against the rulings of the FCC.

Gilmore and Church trial stays in Abingdon, for now

In the latest U.S. v. Gilmore opinion, Judge Jones again refused to a transfer of venue motion, concluding that he can decide during voir dire whether it is possible to seat a jury not tainted by the years of publicity about the Pocahontas murder cases.

Student loan discharge in old bankruptcy case voided

In Educational Credit Management Corporation v. Doane, Chief Judge Wilson of the W.D. Va. ruled that the debtor's bankruptcy discharge was void at least to the extent it purported to discharge her student loan debt, and the creditor could obtain relief from the judgment under Rule 60(b)(4), despite the passage of years since the bankruptcy court's judgment.

Judge Wilson's opinion in the case of the nurse claiming wrongful discharge

In Swain v. Adventa Hospice, Inc., Chief Judge Samuel Wilson of the W.D. Va. granted the defendant employer's motion to dismiss the plaintiff's wrongful discharge claim. The plaintiff claimed that she was discharged because after she corrected the medication for a patient, saving the patient's life, the employer was embarrassed and fired her.

Judge Wilson explained that there are only three scenarios in which wrongful discharge claims are allowed in Virginia: (1) when an employer violated a policy enabling the exercise of an employee’s statutorily created right; (2) when the public policy violated by the employer was explicitly expressed in the statute and the employee was clearly a
member of that class of persons directly entitled to the protection enunciated by the public policy; and, (3) when the discharge was based on the employee’s refusal to engage in a criminal act.

Judge Wilson made three points about the plaintiff's claim: (1) "without a refusal to perform a unlawful act element, very little would focus the factual inquiry, and the employment at-will doctrine would lose considerable vitality, (2) "where the unlawful act alleged is a failure to conform to a standard of care or reach an appropriate professional judgment, there is no bright line to guide and limit the employer – a hallmark of the public policy exception," and (3) "when the challenged decision falls within the professional’s or expert’s domain, not only do bright lines informing the employer’s decision disappear, but employment litigation also digresses."

Thursday, December 18, 2003

Supreme Court refuses to vacate stay in Virginia death penalty case

According to this AP report, the Supreme Court declined earlier this evening to vacate the stay ordered by the Fourth Circuit of the execution of a Virginia inmate, scheduled for tonight.

Adelphia bankruptcy explained to Lee County supervisors

Regarding the renewal of the cable franchise in Lee County, a spokesman for the company explained why promised extensions of service in the County have not been made, as reported in the article ("Lee grants franchise extension to Adelphia Communications," 12/17/2003) from the Kingsport paper (registration required).

The Adelphia spokesman "said the promise was made before bankruptcy was filed, and part of the reason the extension had not been made is because of the bankruptcy - which was brought on by the company expanding to areas that were not adequately populated to provide enough return on the investment."

Virginia mediation news

This newsletter on mediation in Virginia state courts has several worthwhile articles, including more information about how a number of retired judges have been trained for settlement conferences under Rule 1:19. It also describes a program in Chesterfield County, where all litigators have sign a sort of mediation awareness certificate.

A glossary of legal terms

When I was a young man, every month I took the multiple choice vocabulary quiz in my mom's Reader's Digest, in the section called, "It Pays to Increase Your Word Power" (or something like that).

Now, for whatever reason, the Virginia judiciary website has posted this glossary of terms used in court.

It includes some but not all of the words that sound strange to some out-of-state lawyers - motion for judgment, grounds of defense, demurrer, special plea in bar, motion to crave oyer. The first time I saw a motion craving oyer, I burst out laughing, thinking what are they doing to me now? I had carefully alleged a breach of contract without including any mention of the bad contract terms, and here was this motion blowing the whistle on me for doing just that! What a great concept, I thought, I need to file some of these myself, and so I have.

Litigating the triangle

In Northland Ins. Co. v. Berkebile Oil Co., Judge Michael dealt with the case of a insurer seeking a declaration that a third party was not covered by the contract of its insured, which was not joined as a party to the case. The Court surmised: "One can visualize the relationship between the three parties as a right triangle, with the insurance agreement between Northland and Hydrosol forming the upright segment and the indemnity agreement between Hydrosol and Berkebile forming the lateral segment. Northland’s argument is that the sole issue in this case involves the hypotenuse." The Court concluded that the insured was an indispensable party, and granted the motion to dismiss.

Fourth Circuit reinstates death penalty for South Carolina inmate

In Wilson v. Ozmint, the Fourth Circuit in an opinion by Judge Luttig, joined by Judge Widener and Chief Judge Wilkins, overturned the ruling of the district court on the post-conviction relief sought by a South Carolina inmate, reinstating his death sentence. The AP has this report on the case.

Environmentalists say Fourth Circuit nominee Haynes is not for the birds

How Appealing has this post with a link to this site, with a story titled "Bush Judicial Nominee: Bombing Birds Benefits Birdwatchers."

The story begins: "For all the attention on the president's judicial nominees, one of his most recent candidates has remained under the radar screen -- despite a legal record that includes arguing on behalf of the Bush Administration that bombing birds is good for birdwatching."

More on punishing adultery in Virginia

This Findlaw article ("Punishing Adultery in Virginia - A Cheating Husband's Guilty Plea Is A Reminder Of the Continued Relevance of Adultery Statutes," Joanna Grossman, 12/16/2003) discusses the recent case involving the lawyer in Luray, Virginia who entered a plea of guilty to charges of adultery brought by his paramour.

Fifth Circuit says malicious prosecution does not equal a constitutional claim

Via, this story describes the Fifth Circuit's opinion in Castellano v. Fragozzo, which says a claim against state actors for malicious prosecution without more (such as some kind of pre-trial "seizure," within the meaning of the Fourth Amendment) does not establish a constitutional claim. The opinion cites, among others, the Fourth Circuit's decision in Lambert v. Williams, 223 F.3d 257 (4th Cir. 2000).

This area of the law is very interesting, because it is so confusing, starting with the Supreme Court's opinion in the Albright v. Oliver case. I've tried to jump on the bandwagon a time or two but I haven't really had the facts to support it - the idea that there was no constitutional claim because plaintiff has nothing but a malicious prosecution claim. Maybe next time.

New federal rules in lieu of train whistles

The trains don't stop in Abingdon, but they do whistle, or they did.

This AP article describes new rules from the Federal Railroad Administration, which purport to preempt local laws to require extra safety measures at crossing, in plains where trains can't whistle.

FERC denies Virginia's request for delay in AEP case

Reuters reports here that the Federal Energy Regulatory Commission ("FERC") has denied Virginia's request to delay implementation of the ruling that allows American Electric Power ("AEP") to join the PJM multi-state electricity transmission group.

At the same time, one member of the House of Delegates declared that even further delay in allowing Virginia utilities to join regional transmission groups would be necessary to protect Virginia consumers, according to this article in the Richmond paper.

This case seems to be heading for a showdown on the respective powers of state and federal governments over interstate electricity transmission.

Fourth Circuit grants stay of execution in Montgomery County case

The Richmond paper reports here ("Court puts hold on man's execution - Defense says lead trial attorney did not handle the case properly," 12/18/03) and the Roanoke paper reports here ("Appeals court grants stay of execution for murderer," 12/18/03) that the Fourth Circuit has granted a stay in the case of the man scheduled to be put to death on Thursday for murdering an octogenarian woman in Montgomery County.

Wednesday, December 17, 2003

Here's Waldo

Some fellow in Blacksburg, having emigrated from Charlottesville, has added me to his blogroll - and he has this commentary on the upcoming session of the General Assembly, including the text of his letter to Del. McDonnell.

Unrelated to this, some time ago I discovered that Virginia Tech has had a president named Minor and another named Conrad. It says here that Minor was ousted for a fist fight with a professor, while Conrad was a spy for the Confederacy, and at one time was suspected to be a co-conspirator to the Lincoln assassination. I can understand how it is that none of my Minor or Conrad relatives brought this history to my attention, and that there is no Minor Hall in Blacksburg (though there is this one in Charlottesville).

Error on the law school-Red Wings connection

I'm told that the founder of the Ave Maria law school, Tom Monaghan, "never owned the Detroit Red Wings. He did own the Detroit Tigers."

I stand corrected, and ought to know better.

More on marijuana and interstate commerce

In Raich v. Ashcroft, the Ninth Circuit bought the argument that the federal marijuana laws are not within the authority of Congress to regulate interstate commerce - as applied to medical marijuana, rather than I guess just plain party marijuana. The decision notes that in 5 prior decisions, the Ninth Circuit had rejected Commerce Clause challenges to the Controlled Substances Act, but somehow felt they were distinguishable.

This is a bogus distinction that I doubt will pass muster if and when the Supreme Court is heard on this issue.

Roanoke TV station wins defamation case on motion to strike

The Roanoke Times reports here ("Judge strikes libel suit brought by Holdren's against WDBJ-TV," 12/17/03) on a circuit court's decision to strike the evidence in a defamation case against a Roanoke television station brought by a local business.

Apparently, the suit was originally filed in 1997 - so it took 6 years to get to trial?

Tuesday, December 16, 2003

First, the car tax; now, homeland security

According to this press release, the Gilmore Commission report on Homeland Security is now available. The Gilmore is former Virginia Governor James Gilmore, whom I think was in military intelligence at some stage in his career.

Expert testimony on the methods of drug dealers

Blog 702 has this post on the Fourth Circuit's ruling in the case of U.S. v. Gwynn, a per curiam decision for the panel of Judges Wilkinson, Traxler, and Gregory, in which the Court upheld the admissibility of "expert" testimony about the methods of drug dealers, noting that "[i]n the context of drug cases, this court repeatedly has upheld the admission of expert testimony of law enforcement officers, especially about the methods of drug dealers."

I'm wondering just what the expert says in those cases - "I know drug dealers, and the defendant acts just like one"?

Chief Judge Wilson rules no wrongful discharge claim for nurse who sought medicine change

According to this story ("Judge dismisses suit filed by nurse who was fired," 12/16/03) in the Roanoke Times, Chief Judge Sam Wilson of the W.D. Va. found no cause of action under the Bowman-through-Mitchem line of Virginia law cases within the allegations of a "nurse who claimed she was fired after she asked for a change in a patient's medication that saved her life."

Best law school in Michigan

Via Politics & Law, this story ("Hail Mary Passes - How to build a great law school," 12/2/03) from the National Review Online about the Ave Maria Law School in Michigan makes me think that this kind of success is what Dr. Pat Robertson had in mind for Regent and what the Rev. Jerry Falwell hopes to accomplish with the law school coming to Lynchburg, but neither of them ever owned Domino's Pizza (or the Detroit Red Wings).

Finding the governor's tax calculator

Here is the Governor Warner's online tax calculator.

You can count us in among the alleged 65%, our estimated tax savings worked out to be $32.28.

NAACP gets on Warner for race discrimination in state agencies

The Washington Times reports here ("NAACP rips Warner on hiring, diversity") that the NAACP in Virginia is criticizing Governor Warner for not doing more to resolve complaints of race discrimination in state agencies, particularly the Department of Social Services.

Boies possibly out as counsel for the Florida vote litigation in 2004?

This article says Al Gore's old attorney David Boies has some kind of bar discipline charge against him in Florida, which could affect his ability to appear pro hac vice in Florida cases. Florida's Abstract Appeal has this post on the case.

Boies along with Johnnie Cochran are the headliners at the VTLA convention coming up this April at the Greenbrier. I may have to re-mortgage the house and go out to the Greenbrier just to hear and see those two.

Natural Bridge Zoo bears with worse luck than Saddam

As the Roanoke Times reports here ("Hunter shoots 2nd bear from Natural Bridge Zoo, 12/16/03), the second of a pair of zoo bears on the loose because of the inadvertent failure to secure their pen has been killed. The second bear was shot by a hunter who didn't know there was a fugitive Asiatic black bear at large in the woods of Rockbridge County.

Unrelated to this, 10% of New Jersey's bears were killed and one governor is on the hotseat as the result of that state's recent bear season, as reported here.

State Senator Bolling launches campaign for lieutenant governor

The Roanoke paper has this report ("Bolling to run for lieutenant governor," 12/16/03) on the official start to the campaign of Bill Bolling, a Republican state senator from Hanover County, for election as Virginia's lieutenant governor in 2005.

Virginia law standards for the insanity defense

This Richmond Times-Dispatch article ("Defense hinges on illness definitions - What Malvo's attorneys call a disorder is seen as willful to the prosecution's expert," 12/15/03) discusses the law and the evidence on the insanity defense in the Malvo case, still ongoing in Chesapeake.

Monday, December 15, 2003

Virginia inmate faces Thursday execution date

In this article ("Man's execution set for Thursday -
Brain-damaged alcoholic faces death for murdering Christiansburg woman, 87," 12/15/03), the Richmond paper describes the issues being raised by lawyers for a Virginia inmate scheduled for execution this week for murdering an 87 year-old woman in Christiansburg.

The issues include the alleged incompetence of the defendant's lawyer:

"Reid's lead attorney at the time, Peter Augustus Theodore, said he had tried numerous capital-murder cases and other criminal jury trials. He said experienced lawyers he had consulted advised him to have Reid plead guilty. He said it was his experience that juries in Montgomery did not believe in the so-called voluntary-intoxication defense.

But Theodore was not being honest. In fact, last year the Virginia State Bar reprimanded him for making false and misleading statements in the case, and it took away his license to practice law until a physician and a psychiatrist say he is competent to continue.

Neither Theodore nor the lawyer who represented him before the state bar could be reached for comment. According to the bar order of Oct. 22, 2002, Theodore said he suffered from kidney stones "and takes a variety of prescription medications to address this and other health difficulties."

The bar order said there was evidence that three lawyers advised Theodore not to plead Reid guilty before Grubbs. The bar also found that Theodore apparently had never had a criminal jury trial in Montgomery, nor could he identify a case there in which voluntary intoxication was used as a defense in a capital-murder case.

Reid's petition argues that Theodore was unqualified to take a capital-murder case, and that he lied about his qualifications to get the case, for which he was paid $50,000. They also charge that he was not qualified to handle Reid's initial appeal to the Virginia Supreme Court."

The Institute was heard from in Iraq on Saturday night

The Richmond paper has this terrific article ("A VMI grad with eyes like 'two deep caves' directed the raid," 12/15) on Colonel James B. Hickey, a graduate of the VMI class of 1982, and commander of the 4th Army Division brigade that apprehended Saddam Hussein on Saturday.

It ends with this:

"For Richmonder Robert Louthan, another VMI classmate of Hickey's, words of Civil War general and one-time VMI professor Thomas J. 'Stonewall' Jackson came to mind. 'I sent out an e-mail recalling what Jackson said before Chancellorsville: "The Institute will be heard from today."'"

Sunday, December 14, 2003

Governor Warner's tax reforms don't help the poor and the elderly

This article ("Warner Tax-Cut Proposals Won't Benefit Va.'s Poor, Elderly," 12/14/03) in the Washington Post takes the position that Governor Warner's tax reform plan does not "help" the poor and the elderly. The article notes that there will be no income tax reduction for those who do not pay any income taxes, and suggests that poor people are affected more by an increase in the sales tax. There some mention that the removal of the sales tax on food would help the poor, but no attempt to quantify this effect.

More on the contenders in the Virginia presidential primary

Eight Democrats plus Lyndon Larouche filed to be on the ballot for Virginia's Democrat presidential primary next February 10, as reported here in the Richmond paper, which reports that Professor Larry Sabato believe Howard Dean is strong in Northern Virginia, while Wesley Clark and John Edwards have support in Southside and Southwest Virginia.

Spamming suspect turns himself in

The AP reports here that the second of the two North Carolina men charged under Virginia's anti-spamming law has turned himself into the authorities.

William & Mary president talks about the funding gap

Here is William & Mary President Tim Sullivan's "clear-eyed look at the higher-education funding gap."

Oral argument earlier this month at William & Mary

The Dog Street Journal had this report on oral arguments before a panel of the Fourth Circuit December 5 held at the McGlothlin courtroom ("the world's most technologically advanced trial and appellate courtroom") in the law school of the College of William & Mary.

"Dog Street" refers to Duke of Gloucester Street in the lingo of Williamsburg residents, the McGlothlins for whom the courtroom is named are the parents of the McGlothlins of the United Company based in Bristol, and the Fourth Circuit panel that day included Judges Widener, Michael, and Shedd.

Friday, December 12, 2003

Proof positive that nobody at the Virginia Supreme Court reads this blog

This week in WOW 8.50, Woody says:

"That state Supreme Court I told you about last week still has documents on the Web that are filled with names and file locations and all sorts of detailed information about the Court's data processing operations. (Those of you who wrote on behalf of other Supreme Courts - nope, you folks don't work for the one I was talking about.)

This week, I was stunned to discover even more detailed information posted in docs related to the Department of Homeland Security. (The Dept of Homeland Security itself,, doesn't appear to have any Word docs on its site. Bravo!) More about that in a moment.

The point of all of this: don't post Word documents on the Web. Don't do it. Even with the best intentions, using the latest tools, you or one of your co-workers will eventually slip up and stick something out there that you don't want to be public knowledge. Any kid with a copy of Word can see an eyeful."

I'm still guessing he'stalking about the Virginia Supreme Court. If I could figure out how to send an e-mail to someone who has anything to do with the Virginia Judiciary website, I would issue them a challenge to fix this problem by January. Probably a solution is already in the works without agitation from me -- the Court of Appeals switched over to PDF in September.

First U.S. spam indictments under new Virginia law

This AP article, this other AP article, this article ("Book'em, Jerry," 12/12/03) from the Washington Post, this article ("Two face 20 years in spam probe," 12/12/03) from the Daily Press, this article ("Spammer suspect arrested in N.C.," 12/12) from the Baltimore Sun, and this article ("Felony spam charges filed," updated 12/12/03) from USA Today, and this story ("Virginia Hits Spammers With Felony Charges," 12/11/03) from, this story on, and this story from the Richmond paper ("2 men charged under spam law," 12/12/03), discuss the nation's first spam indictments and arrests, involving charges out of Loudoun County, Virginia under the new Virginia spam law against two men from North Carolina.

Sounds like a story written by Harry Caudill

Via, the Louisville Courier-Journal has this wild article about suspected wrongdoing by a judge in Eastern Kentucky, with allegations including improper hiring of temporary employees, improper relationships with women, improper deals with lawyers, and I don't know what all else.

Thursday, December 11, 2003

Settlement conferences under Rule 1:19

I heard something the other day about the possibility of the referral of state-court civil cases to judges for settlement conferences, and this week a form pops up on the Virginia judiciary web page for settlement conferences under Rule 1:19, so I guess there is such a thing, maybe I'll have to ask for one. This sounds too good to be true, it sounds like getting sitting or retired judges to mediate cases for free, so we'll have to unravel the fine print.

Reverse discrimination in refusing to plea bargain

In Orbe v. True, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams and Traxler and Senior Judge Hamilton affirmed the denial of a petition for habeas corpus in a death penalty case out of Virginia. One of the issues raised was the prosecutor's use of race - the claim was that the prosecutor discriminated against the petitioner in plea bargaining because the petitioner was white. Specifically, the petitioner's trial counsel testified that the prosecutor "told [him] that she could not agree to give a white man (Mr. Orbe) a life sentence when she had just asked for and obtained a death sentence for a black man (Daryl Atkins) in an unrelated capital murder."

Judge Jones considers class certification in Wise County landfill fee case

The Coalfield Progress reports here ("Judge to rule later on whether federal court will hear case, 12/11) on the oral arguments before Judge Jones of the W.D. Va. on the issue of whether the Court should certify a class action for the claims of Wise County residents seeking refunds of the Wise County landfill fee which the Virginia Supreme Court declared to be unconstitutional.

Del. Marshall to propose Virginia Defense of Marriage Act

Via VLW, the Washington Times reports here ("Bill would oppose same-sex unions," 12/11/03) that Delegate Robert Marshall from Northern Virginia will propose a law that would bar Virginia from recognizing same-sex civil unions from other states.

Oops, legislators will support Amherst judge after all

Via VLW, the Lynchburg paper is now reporting here ("Judge receives support," 12/11) that area legislators will support the reappointment of Judge Janow of the Juvenile & Domestic Relations District Court in Amherst County.

Wednesday, December 10, 2003

Political speech versus nude dancing

This post from Ninomania notes once again the incongruity that political speech can be limited but few limits are allowed on nude dancing. The post cites Judge Bork, who as I once quoted here, said much the same thing comparing school prayer and nude dancing. Based on the Fourth Circuit's recent decision in the Charlottesville middle school case, the dancers don't have to be nude, they could wear National Rifle Association t-shirts and still be protected, but the government can stop them from buying ads saying their Congressman is soft on gun control.

1 million sheets of paper

According to this story about the discovery disputes in the Linux copyright case against IBM, one of IBM's complaints was that the plaintiff produced some requested code "that had been printed on 1 million sheets of paper." The plaintiff responded, "If a company wants code, it's the other party's decision to provide that any way they feel like providing that." It sounds to me like one side or both are cruising for a bruising in that case, just over the discovery.

Not long ago, a lawyer on the Tennessee filed a motion to compel on me, after I objected to all 4 of his interrogatories. I sent him a brief in opposition to the motion. He read the brief then we talked and he said, more or less, "We don't get discovery objections in state court in TennesseeI didn't know your objections were based on the law. I thought you were just being a jerk." I said, "those were 4 lousy interrogatories."

Court can't modify contract incorporated into order

In Smith v. Smith, the Virginia Court of Appeals in an opinion by Judge Bumgardner, joined by Judges Annunziata and Frank, reversed the trial court's decision to modify the ex-husband's support obligations, where the parties had reached an agreement on support and the agreement was incorporated into the Court's order.

The appeals court said the "merger" of the contract into the circuit court's order does not somehow empower the circuit court to modify the terms of the deal.

What happened in that campaign finance case?

From the Supreme Court's opinion on the campaign finance laws, here is what the 298 pages contain:

STEVENS and O'CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, IIA, and IIB. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.

I don't know whether I'll ever get around to reading the opinions, or even trying to count them.

Maryland down, Carolina next

The Daily Press reports here ()"Va. may be targeted in pollution suit ," 12/10) that the attorney general for North Carolina is demanding that several states, including Virginia, do something about the pollution from their power plants.

Tuesday, December 09, 2003

Judge Turk overruled on constitutionality of the RLUIPA

In Madison v. Riter, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judges Michael and Duncan rejected Judge Turk's ruling that the federal Religious Land Use and Institutionalized Persons Act was unconstitutional as a violation of the Establishment Clause, in its requirements that prisons accommodate the religious beliefs of inmates.

The Roanoke Times has this article ("Appeals court backs inmate's religion rights," 12/9) about the decision.

Poll says Virginians favor cigarette tax

The AP says here that 69% of Virginians favor an increased tax on cigarettes. I doubt that would be true out here in the hills, where none of us are healthy (but we are not as unhealthy as Tennessee, which is in the bottom 5 with Mississippi and Arkansas).

Take that, you Marylanders

As reported here by Reuters, here by the AP, here by the Maryland Gazette newspapers, and here by the Washington Post, the Supreme Court has ruled by a 7-2 vote in Virginia v. Maryland for Virginia is the winner and Maryland is the loser in a dispute over the boundary along the Potomac River. (What else do you need to know about a case like that? Unfortunately, in the last Virginia v. Maryland matchup, Maryland won by a wider margin, 27-17.)

This continues the serious roll of cases in which Virginia, AG Kilgore, and his solicitor general, Mr. Hurd, have won before the United States Supreme Court, going back to last year with the cross-burning and trespassing cases.

On self-defense in Virginia

The Norfolk paper had this feature article ("Some crime victims fight back, but experts are wary," 12/8) on crime victims who fight back, including some discussion of the law of self-defense in Virginia.

Big Stone Gap annexation shot down for lack of money

After the Town of Big Stone Gap and Wise County each spent roughly $400,000 fighting over the town's annexation effort, the three-judge panel ruled that both the town and the county were too poor for the annexation to work, and therefore sided with the County, according to this report ("Big Stone Gap annex try nixed," 12/8/03) in the Bristol paper.

Ignorant Grinch of a law school dean

From's daily newswire, this story of the dean at the Indiana University law school who put up then took down a decorated Christmas tree at the law school omits any reference to the U.S. Supreme Court's decision in Allegheny County v. Greater Pittsburgh ACLU, that a Christmas tree display is secular enough to avoid any establishment clause issues, noting that "The Christmas tree, unlike the menorah, is not itself a religious symbol. Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas."

Perhaps Marcia Oddi of Indiana Law Blog will add details to this story.

Amherst County JD&R judge one of 4 scrutinized by legislators

The Lynchburg paper has this article ("Judge may not maintain position," 12/9) one of 4 judges up for reappointment this term who are facing some opposition - the article is about a juvenile and domestic relations district court judge sitting in Amherst County. Earlier this week, Virginia Lawyers Weekly also listed as being on the hot seat Judges Janow from Amherst, Circuit Judge William Andrews from the Hampton area, J&DR District Judge Woodrow Lewis from Virginia Beach, and GDC Judge Robert Giammitorio from Alexandria.

Evidently, Judge Joe Tate from Smyth County here in this district passed muster without objection, which is surely a good thing. Judge Tate is an excellent, good-natured judge and having appeared before him is one reason why I have to laugh at the talk of requiring district court judges to work a 40 hour week. If Judge Tate can squeeze in under 40 hours some weeks (and I don't know that ever happens), more power to him, the Commonwealth is still getting its money's worth from him.

After 13 months in jail, DNA springs murder defendant

The Roanoke paper has this account ("Strength of evidence against suspect in slaying in doubt," 12/9) of a murder defendant in Franklin County who has held in jail for 13 months but released when the DNA evidence came back as being that of someone else.

Monday, December 08, 2003

Loose lips sink ships

Via a faithful reader, this story ("Purcellville Council To Vote On Employee Gag Order," 12/4) from the Leesburg paper says one Virginia town is weighing a new policy whereby no Town employees would be allowed to talk to reporters until after next May's municipal elections.

Most of the article involved quotes from local government officials and lawyers, all scratching their heads and saying, no, we've never heard of anything quite like that.

Why I use CaseMap

This article ("Complex Litigation for Small Firms and Solo Lawyers") talks about different ways of handling complex cases, including the use of programs like CaseMap.

The first time I used a database in a case was when my old guru Jack White had discovered the FileMaker program, and we made up some records for the document production in a case involving what seemed like a bunch of documents to me. The other side produced a bunch of business records in various file folders. When we started asking questions about particular documents, the other side couldn't find them, so I looked them up in my homemade database and told them where we had seen them in their files. Sometime later I had a case in federal court that went on for about 6 years. It was good to have a fact database to come back to whenever I had to actually know something about the case.

U.Va. logo cannot be banned in Virginia's public schools

In Newsom v. Albemarle County School Board, the Fourth Circuit in an opinion by Senior Judge Hamilton joined by Judges Williams and Shedd reversed the denial by Judge Moon of the W.D. Va. of the plaintiff middle school student's motion for a preliminary injunction against the enforcement of his school's dress code as it prohibited messages on clothing that relate to weapons. The plaintiff wore an NRA t-shirt to school, and was told at one point he ought not to wear it.

Beginning its discussion, the Court noted that the consideration of irreparable harm in this case was intermingled with the likelihood of success on the merits. The student claimed the dress code prohibition was overbroad "because (1) it applies to nonviolent and nonthreatening images/messages related to weapons and (2) there is a dearth of evidence demonstrating that the display of images/messages related to weapons, nonviolent, nonthreatening, or otherwise, would substantially disrupt school operations or interfere with the rights of others."

The opinion wanders off into considering what all the dress code might prohibit, including the logo of the U.Va. Cavaliers: "Thus, under the 2002-2003 Jouett Dress Code, a student may not wear or carry any items bearing the State Seal of the Commonwealth of Virginia. Likewise, the symbol of the University of Virginia’s athletic
mascot—the Cavalier—is two crossed sabers. This symbol also relates to weapons. According to the Virginia Attorney General, the symbol is used throughout Charlottesville to direct visitors to the university’s football stadium and other facilities and simply to promote the university’s athletics. Ironically, Albemarle County High School, which is located across the street from Jack Jouett Middle School, uses the image of a patriot armed with a musket as its own mascot. Various clothing depicting support for the University of Virginia and Albemarle County High School by way of the schools’ mascots
would be banned under the 2002-2003 Jouett Dress Code."

The Court concluded that the policy was unconstitutional, as "[i]t excludes a broad range and scope of symbols, images, and political messages that are entirely legitimate and even laudatory."

This opinion is couched in all the right terms, and maybe even has the right outcome, but I'm not sure that I like it. It seems like sort of a sham case in the first place, since the opinion notes that since the dress code was amended, no one was doing anything to enforce it against the plaintiff, who contined to wear his NRA summer camp t-shirts from time to time. If the dress code was not going to be enforced before there was a hearing on the merits, then why not proceed to the merits in the normal fashion? I guess I'm just thinking about the school board paying all those attorney fees, perhaps ultimately for both sides in this case.

Attorneys' fees of $50,000+ affirmed in VCPA case

In Peter Farrell Supercars, Inc. v. Monsen, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Williams, and Duncan affirmed the judgment in favor of a consumer on claims of breach of contract, fraud, and violation of the Virginia Consumer "Practices" Act, which I thought was called the Virginia Consumer Protection Act, see Va. Code § 59.1-196, and an award of attorneys' fees under the Act.

The most interesting part of the opinion deals with the VCPA. For one, it states that the fraud rule for when a cause of action accrues applies to VCPA claims based on misrepresentation, which is not at all clear to me as being true. The whole point of the VCPA is to allow consumers an easier recovery, without having to prove all the byzantine elements of fraud - and if VCPA claims are not really fraud claims, they should not get the accrual rule reserved for fraud claims under Va. Code § 8.01-249. Even more interesting, the appellant raised Va. Code § 17.1-625, which says simply, "Although the party recovering may have had more than one attorney, only the fees of one shall be taxed in the same court." The appellant claimed that this meant the fee award could not include fees for the work of more than one attorney. The Fourth Circuit dodged the question of what the statute means, concluding that it was sufficient for the trial court to eliminate any duplication in the fee application of the multiple attorneys.

I never heard of this statute and have no idea what it means.

When is a judgment of acquittal not a judgment of acquittal

In U.S. v. Alvarez, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judge Michael and Judge Motz, reversed the trial court's "Judgment of Acquittal" and remanding the case for a new trial, because the trial court did not say that it had decided that the government's evidence could not support a conviction (even though that may be what the trial court meant to say).

Helping the jury find its place on the tape machine

In U.S. v. Pratt, the Fourth Circuit in an opinion by Judge Niemeyer concluded among other things that there was no error in allowing technicians to go into the jury room and cue up a part of the evidence on tape, that the jury could not find themselves. Judge Motz dissented on this point, explaining that the government must affirmatively prove that there was no harm in what was done.

Wrong place, wrong time

According to this report ("Homemade machine-gun maker seeks to withdraw guilty plea," 12/2) in the Tennessean, a Tennessee man is looking to withdraw his guilty plea to making his own machine guns, in light of the Ninth Circuit's ruling that the federal law prohibiting such guns is unconstitutional because there is no effect on interstate commerce.

That's telling them

Via How Appealing, this AP story ("State Justices Decline Fed. Court's Questions in Death Penalty Case," 12/4) reports that the Tennessee Supreme Court has refused to answer question about state law sent to it by a federal court in a death penalty case. I support the state court can let the federal court have a first crack at the state law issue, then decide in the next case whether the federals guessed right.

Northern Virginia Republican proposes increased tax on gasoline

The Washington Times reports here ("Manassas lawmaker plans rise in gas tax") that a Manassas Republican is preparing a legislative proposal for an increased tax on gasoline.

Friday, December 05, 2003

Delegate Joe May ponders run for lieutenant governor in 2005

The Winchester paper describes here the designs of Delegate Joe May to run as a candidate for the Republican nomination for lieutenant governor in 2005.

Thursday, December 04, 2003

Keeping sodomy illegal in Virginia

The AP has this report on the recommendation of a legislative panel in Virginia to keep its anti-sodomy laws on the books.

The article notes: "The sodomy statute would not be the first unconstitutional law left on the books in Virginia. Crime Commission members also declined this week to recommend repealing laws prohibiting certain businesses from operating on Sundays and a ban on flag mutilation. Those laws were ruled unconstitutional in the 1980s."

Breaking down the numbers for protective orders in domestic relations cases in Virginia

The Richmond paper has this analysis of the frequency with which protective orders are entered in domestic relations cases in different parts of the Commonwealth: it says that in Southwest Virginia, such orders were entered at a rate of 8.43 per 1,000 people, one of the higher rates.

Magistrate Judge Sargent denies motion for forcible medication of federal inmate

In U.S. v. Evans, Magistrate Judge Pam Sargent of the W.D. Va. denied the motion of the federal government for the forcible medication of an inmate to make him competent to stand trial.

Judge Jones grants summary judgment in Title VII case

In Bishop v. Aerus, LLC, Judge Jones of the W.D. Va. granted summary judgment for the employer in a Title VII case where the plaintiff claimed sex discrimination, concluding in a lengthy discussion of the facts that the plaintiff had failed to create a question of fact as to whether the employer's explanations for the adverse employment actions were pretextual.

Prosecutors who defied senior judge offer apology to end contempt trial

The Roanoke Times has this article ("Pittsylvania prosecutors apologize for conduct," 12/4) on the conclusion of the trial of contempt charges against the Commonwealth's attorney for Pittsylvania County and his assistant, who bucked heads with a senior Circuit Court judge and told him what they thought of him. At the end, the special prosecutor is quoted as saying, "I learned as a young lawyer real fast that if you're going to take on a judge, you better get him the first time."

Rape suspect allowed to subpoena police officer's mental health records

According to this article in the Coalfield Progress, Judge John Kilgore has ruled that the Commonwealth is obliged to respond to a subpoena from defense counsel for a man accused of rape for mental health records from the state hospital in Marion about a town police officer who investigated the rape case. The defendant is represented by Stephanie Pease.

MEDex creditors suing Wellmont for letting MEDex go broke

As reported here ("MEDex Lab creditors suing Wellmont for $15 million," 12/4) by Matthew Lane in the Kingport paper (registration required), a Knoxville lawyer has filed a $15 million lawsuit in U.S. Bankruptcy Court in Knosxville against Welmont Health System and its officers claiming that the defendants were responsible for the bankruptcy of MEDex.

Choice not an echo

Former Roanoke mayor and practicing lawyer David Bowers is declaring he will run again for mayor, according to this report ("Former Mayor David Bowers says he'll launch re-election bid," 12/4) from the Roanoke paper, and he says the first thing he would do is fire the City Manager, Darlene Beacham, who has become a lighting rod for critics of government projects including the decision to ditch the old Victory Stadium and build a new multi-use facility. Bowers lost the last time to a Republican who came in first past the post when the Democrat vote was split in a three-way race. The article says the current mayor has indicated he will not seek re-election.

Wednesday, December 03, 2003

Woody on Word documents from the Virginia Supreme Court

In this week's edition from Woody's Office Watch, he includes the following paragraph:

"A WOW-MM reader pointed me to an entire collection of documents posted by one state's Supreme Court. I didn't see anything particularly damning in the documents, but they're strewn with names and email addresses of clerks, law firms, and individuals; file locations, server names, and so on - a few hours' worth of harvesting could lead to a credible blueprint of sections of this Supreme Court's word processing system."

I'm not naming names, but he could be talking about the Word versions of the opinions of the Virginia Supreme Court, available on the Virginia Judiciary website. The webmasters ought to get with the program and post the Supreme Court opinions in PDF format, as is now being done for some of the Virginia Court of Appeals opinions.

Commentary on the AG, the DOC, and FOIA

This editorial from the Norfolk paper is critical of the way the Department of Corrections responded to FOIA requests regarding the settlement in the Wallens Ridge wrongful death case.

Just one of them political deals

Published reports such as this one recounted the visit of some NASCAR drivers to the White House to meet with President Bush.

I don't follow NASCAR with the intensity of many of my friends, but I enjoy the drivers - as was the case recently when I saw Earnhardt, Jr., interviewed on the "Hot Seat" segment of "Sportscenter" and when he was asked the question, "which NASCAR driver would you most like to punch in the face?" his first reaction was "Awesome!" (He said he'd like to punch Matt Kenseth, but he figured that Kenseth would punch him back.) I went to elementary school for a while with one of the longtime NASCAR reporters, but I can't say that I've seen her on TV in some years (particularly since Fox Sports Net is not included in my cable package at the house).

I first read of the association between NASCAR and presidential politics in the nutty Hunter Thompson book, "Fear and Loathing: On the Campaign Trail '72," in which he describes a scene with Alabama Governor George Wallace shaking hands with his good friend "Dick Petty," and how none of the other Democrats had that kind of connection. (Has anything changed on that score?) I doubt that Petty ever endorsed Wallace, particularly since he ran as a Republican when he sought statewide office in North Carolina in 1996.

More on e-filing

This afternoon I was looking at the local rules in a district which has already implemented e-filing and electronic case management. This Findlaw article ("EFiling - The Future Is Now") reports on the changes wrought by e-filing, which is coming soon to the W.D. Va. and the E.D. Tenn. (and everywhere else, I suppose). The article links to this report on the state of e-filing in the federal courts.

On the rights of employees with histories of substance abuse

In Raytheon Co. v. Hernandez, the U.S. Supreme Court sided with the employer and reversed the Ninth Circuit in a case dealing with the application of the Americans with Disabilities Act to employees with histories of substance abuse.

As reported in this AP article ("Court Rules on Workplace Rights Issue," 12/2) by Gina Holland, the Court decided the case on narrower grounds than some employers had hoped.

Odd notes: (1) This is one of the cases that is included in the Supreme Court Fantasy League prognosticating contest, and I am happy to report that I picked it correctly, although I guessed the margin would be +5. I mention this since it may never happen again that any of my picks are correct.
(2) It is solely thanks to How Appealing that I have begun to pay attention to who is whom among the different major media reporters on the Supreme Court. The only one I would have known before I started reading How Appealing was David Savage from the LA Times, and that from his appearances at events that were shown on C-Span. The Bashman post to Savage's article on this case for the LA Times (registration required) is here.

More on the Virginia adultery case

This post from has commentary on the adultery case of the Luray lawyer.

Tuesday, December 02, 2003

Websites for high-profile criminal defense

This article ("Michael Jackson, Martha Stewart Take Cases Straight to the Net," 12/2) from ONLINE JOURNALISM REVIEW quotes Virginia blawger Ken "The Hammer" of CrimLaw and others regarding the use and misuse of websites for publicity when fighting high-profile criminal charges.

Another perspective on the litigation over the new Virginia abortion law

This article from the website of the Feminist Majority Foundation comments on the litigation over the constitutionality of Virginia's new partial-birth infanticide law.

The VoIP debate

The Post has this story ("Powell Opposes Internet Phone Regulation - Government Interference Could Stifle Developing Technology, FCC Chief Warns," 12/2) about the FCC's conference on Voice over Internet Protocol ("VoIP"), at which FCC Chairman Powell denounced state regulation, while state officials and others explained why they believe regulation is necessary.

On adultery in Virginia

The Washington Post has this report ("Va. Adultery Case Roils Divorce Industry - Conviction Draws Attention to Little-Used Law," 12/1) and a Virginia TV station has this report on a Virginia lawyer convicted of adultery. One of the effects is to dispel the notion that adultery is never prosecuted in Virginia and therefore cannot be a valid basis for assertion of the Fifth Amendment privilege against self-incriminating testimony.

Keeping score for 2004

I don't know why I never heard this before now, but it says here in this article ("Shifts in States May Give Bush Electoral Edge," 12/2) from the NY Times (registration required), that if Bush carries the same states in 2004 as in 2000, those states now have a net of 7 more electoral votes than they did in 2000. The author speculates that only 15 states are up for grabs in the 2004 election: Oregon, Nevada, Arizona, New Mexico, Iowa, Minnesota, Wisconsin, Michigan, Missouri, Ohio, Pennsylvania, West Virginia, New Hampshire, Maine and Florida.

State pays to settle inmate wrongful death suit in Wise County

According to this report ("State pays $350,000 in inmate's death," 12/2) in the Roanoke Times, the Commonwealth paid $350,000 to settle the claim filed in connection with the alleged wrongful death of an inmate at the Wallen's Ridge prison in Wise County. The newspaper obtained the details of the settlement by filing a FOIA request to the state's Department of Treasury. As one consequence of the incident on which the case was based, prison officials are no longer using the stun gun.

Monday, December 01, 2003

Ex-prison guard claims he was run off by harassment

As reported here ("Ex-correctional officer files $9 million lawsuit against state, NCC warden," 11/29) in the Kingsport paper (registration required) and here, a former Tennessee state prison guard has filed suit in the E.D. Tenn. claiming that he was forced to quit his job when co-workers began claiming that he was a homosexual and that he was going to have a sex change operation.

Jerry Falwell endorses Steve Baril for Virginia AG in 2005

According to this report ("Baril picks up endorsement from Falwell," 11/29) from the Richmond paper, the minister of the Thomas Road Baptist Church in Lynchburg, Jerry Falwell, has endorsed Steve Baril for Attorney General. Baril is a partner in the Williams Mullen firm and the son-in-law of the late former Governor John Dalton.

What happens with a do-nothing legislature

Today's ruling in the Colorado redistricting case shows what happens when the legislature failed time after time to amend the Colorado laws for congressional districts after the 2000 census gave the state an additional seat in Congress, with the result that a court imposed a plan for the 2002 election. In 2003, the state legislature finally passed a redistricting law with 7 not 6 districts, but today the Colorado Supreme Court ruled in this opinion that the legislature missed its chance to act on the 2000 census and will have to wait until the next go-round. The Court concluded "that when the General Assembly fails to provide a constitutional redistricting plan in the face of an upcoming election and courts are forced to step in, these judicially-created districts are just as binding and permanent as districts created by the General Assembly."

There is some appeal to the doctrine of "use it or lose it." I wonder what was going on in the Colorado legislature in 2001 and 2002.

Corrections officers with no constitutional right to associate with prisoners

In Akers v. McGinnis, the Sixth Circuit ruled that a state rule prohibiting corrections employees from non-work-related contact with inmates and probationers did not violate the employees' First Amendment association rights.

The Blogbook - A guide to legal blogging

I just discovered The Blogbook - A guide to legal blogging, via this Findlaw article ("The Blogbook: Open Source Lawyering"). Apparently, however, the Blogbook discovered me ere now, as SW Virginia law blog is on its list of legal blogs.

FERC takes on state law to allow Virginia power companies in regional transmission group

The Federal Energy Regulatory Commission (FERC) has ruled that the Virginia General Assembly and Virginia's State Corporation Commission had no right to prohibit the state's power companies, including Dominion and AEP, from joining the PJM regional transmission group for the Mid-Atlantic states - according to this report in the Richmond paper. Virginia lawmakers and regulators have expressed fear that allowing these companies to join a multi-state group would result in the loss of low rates for power to Virginia's consumers.

Now, you'd think that a state law affecting interstate power transmission would almost surely be unconstitutional as against the Interstate Commerce clause, somehow or another, but the state officials in this instance are arguing that what is unconstitutional is FERC's action.

Commentary on the challenge to the new Virginia abortion law

This story offers a "pro-life" view of the litigation challenging the new Virginia statute prohibiting "partial-birth infanticide."

Judge Moon rules on merits against county biosolid restrictions

The AP reports here ("Judge rules county ordinances illegal") that Judge Moon of the W.D. Va. has ruled that a county ordinance limiting the rights of farmers to use biosolids as fertilizer. Earlier, the Fourth Circuit affirmed Judge Moon's decision to grant a preliminary injunction for the plaintiffs in the case (so the latest ruling can't be a surprise).

AG Kilgore leading states in opposition to other states' environmental claims

According to this AP article ("A legal war between the states has erupted over the federal government's attempt to relax air pollution regulations," 12/1), Virginia Attorney General Jerry Kilgore is soliciting other states to join with Virginia as amici curiae in opposition to the litigation brought by other states to block the relaxation of federal rules under the Clean Air Act.

In Virginia, tobacco money goes to the right places

This story in the Richmond paper describes how the Commonwealth is relatively ahead of other states in targeting its windfall tobacco settlement money towards the economic revitalization of parts of the state that are affected by the decline of the tobacco industry, including Southwest Virginia.

In particular, the article cites the works of the Virginia Tobacco Commission. of which the commissioners include Senator Wampler, Delegate Kilgore, Senator Puckett, attorney Ronnie Montgomery, Delegate Joe Johnson, and a handful of others from Southwest Virginia, in addition to commissioners from Southside Virginia.

Hero of the Commonwealth's Cup

The Norfolk paper had this profile ("The strong, silent type, Cavaliers’ Miller lets his stats do the yakking," 11/28) on Southwest Virginia's own Heath Miller, the U.Va. tight end who was the star of the Virginia offense in this Saturday's victory (Richmond Times-Dispatch, "Hoot for 'Hoos," 11/20) over Virginia Tech.

What a great day, that game was. I told my wife after the game that when Miller caught the pass for the first down on the fake field goal in the fourth quarter, I was so happy I just about cried.

Commentary on latest tax reform study commission

The Norfolk paper has this commentary ("Do-nothing commission bad omen for reform," 12/1) on the failed legislative commission, which quit last week declaring that it was unable to reach an agreement on what to do about tax reform for Virginia.

In the Washington Post, VCU's Professor Holsworth opines here ("Gov. Cautious Takes A Leap," 11/30) that Governor Warner's new tax plans is a rare display of bravado on his part.

After 40 years, family wants convicted murderer released

The Fredericksburg paper has this account ("Killer's relatives have overcome their shame and fear. Now they want their brother home." 12/1) of the efforts to obtain the release of a Virginia inmate convicted almost 40 years ago of killing two policeman. The inmate is now suffering from liver cancer and has been denied parole 25 times.

Selling Christmas trees from Southwest Virginia

This article ("End of drought improves quality of Christmas trees," 12/1) tells about a fellow who grows Christmas trees around Whitetop and sells them in South Carolina.

Wednesday, November 26, 2003

Virginia lawyer accused of trying to launder stolen money through casino

The Philadelphia Inquirer has this story which begins, "A lawyer on the run from allegations that he stole more than $436,000 from a Virginia law firm has been charged with laundering part of the loot through the Trump Taj Mahal casino." The article says the lawyer was from Arlington.

Different kind of interview with Jerry Kilgore

Here is a somewhat offbeat interview with Attorney General Jerry Kilgore, in which he says, among other things, that "99.9 percent of the time [he and Governor Warner are] on the same page."

It reminds me somehow of a tape recording I heard in the summer of 1985 (as part of Professor Sabato's Campaigns and Elections class), of a child interviewing Senator John Warner. She asked him what was his favorite color, and whether he had met any famous people since he became a senator.

Tuesday, November 25, 2003

More on Joe Wolfe's U.S. Supreme Court case involving the Privacy Act

This Findlaw column ("The Supreme Court Considers Whether a Privacy Act Plaintiff Can Recover $1000 Even Without Proof of Damages") is about a case brought by Joe Wolfe in the W.D. Va. that has filtered its way up to the U.S. Supreme Court. Here's an earlier post about the case. The Fourth Circuit opinion is here.

The Findlaw author concludes that "even if these plaintiffs lose, future plaintiffs should win, even if they cannot prove damages. That is because privacy is valuable in itself, even when actual damages cannot be proven."

Why should towns own their own fiber networks

Not that I need any convincing, but here is Professor Lessig's explanation of why towns should have their own advanced fiber networks - and not once does he mention BVU OptiNet.

What he says in part is this: "If a traditional network provider owned an AFN in a particular area, that network provider, acting rationally, would charge customers a monopoly price, or restrict service to get its monopoly benefit. But if the customer owned the network, then the customer could get the same access at a much lower price and be free of use restrictions. McAdams is pushing - and Burlington and other cities are actually deploying - customer-owned AFNs."

Rating the Virginia Democrats' website

The Democratic Party in Virginia has this new website, which according to this review is better than it was but still lacking in the ways to count to the people who who websites.

So much for a good plan

I went to this afternoon's meeting of the Bristol, Virginia, bar, took two associates with me, but got elected anyhow as the new president. At the last meeting, I was selected to represent this area on the board of the Southwest Virginia Legal Aid Society. Previously, I would have expected that only those who were absent from the bar meetings were selected to such posts.

A few years ago, the bar president was a good guy who before he went to law school had been one of my elementary school teachers in Abingdon. A photocopy of his picture from my school yearbook, c. 1976, was made and posted in the clerk's office, with the message, "Should this man be president of the Bristol Bar?" He had sort of a Doug Henning haircut and mustache in those days, now his hair is more light than dark and there is not so much of it. Eventually, he discovered the poster and took it down, wondering how long it had been there and how many people saw it.

Probably I should start checking the boards where things are posted in the clerk's office.

The Ntelos bankruptcy from the shareholder point of view

The Roanoke Times has this story from the perspective of shareholders in the Ntelos telecommunications firm, which involved some independent telephone companies that had been successful for a long time, then merged to form Ntelos, got involved in some fancy deals with some fancy borrowing, and went into Chapter 11. The article quotes one person as saying, "They took a 100-year-old phone company and ground it to nothing."

Malvo picked the wrong state for murder

This AP story says that sniper John Muhammad picked the wrong state in which to commit capital murder, because in Virginia, death sentences get carried out, more often than not.

More on the case challenging the new Virginia abortion law

The AP had this story and the Richmond paper had this story on the arguments in the hearing on the plaintiffs' motion for summary judgment before Judge Richard Williams yesterday in the case challenging the constitutionality of the new Virginia partial-birth infanticide law.

More on the Charles Riner appeal

O'Donna Ramsey has this article in the Coalfield Progress on the Supreme Court's decision to grant the petition for appeal in the Charles Riner murder case from Wise County.

Counterfeiters nabbed in Lee County trying to pass bogus $5 bills

According to this story by Walter Littrell in the Kingsport paper (registration required), three Lee County residents have been arrested for trying to pass counterfeit $5 bills at convenience stores.

In TN, accident victim sues rescuers who left him at scene thinking he was dead

The Kingsport paper (registration required) has this story about the Hawkins County man who was left at an accident scene last year for almost two hours because the emergency personnel thought he was dead. The plaintiff is seeking $5 million.

The article notes:

"The accident occurred on Nov. 24, 2002, about 5:30 a.m. when Rollins' 1984 Chevrolet pickup left Caney Valley Road at a curve near the Gene Derrick Road intersection and struck several trees.

According to reports, the Stanley Valley Volunteer Fire Department was first to arrive on the scene. Firefighters reportedly checked for a pulse on Winegar and found none.

Church Hill EMS arrived next, and a paramedic also reportedly checked for Winegar's pulse and found none.

Stanley Valley VFD Lt. Charles Thacker told the Times-News last year that Winegar was lying on the hood of the pickup partially through the windshield with a sheet over him while an investigation of the accident was under way. The Hawkins County Sheriff's Department and Tennessee Highway Patrol also responded to the accident.

Thacker said about 7 a.m. he noticed Winegar moving under the sheet. Hawkins County Central Dispatch records show that at 7:17 a.m. Winegar was on his way to Holston Valley Medical Center in Kingsport."

Monday, November 24, 2003

Warner proposes, his opposition opposes

A tenfold increase in the cigarette tax, a one cent increase in the sales tax to 5.5 %, and higher taxes on "rich" people - that's what Governor Warner proposed today, as written here by the AP, and here by the Washington Post. The web page for the Governor's plan is here.

Summary judgment affirmed on Title VII claims of former ATF agent

In Clarke v. O'Neil, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams, Gregory, and Shedd affirmed this decision by Judge Jones of the W.D. Va. granting summary judgment on the Title VII claims of a former employee of the federal Bureau of Alcohol, Tobacco, and Firearms.

Big telephone companies opposed to new service requirements from SCC

The Richmond paper has this article on the opposition of the big telephone companies in Virginia to new service standards that are being imposed by the State Corporation Commission on telephone service providers with more than 20,000 lines.

On Democrats campaigning for president in Virginia

The Washington Post has this article on Democrats campaigning in Virginia in advance of next February's primary, which seems really weird, so weird in fact that the article mentioned that union activists in Southwest Virginia was part of the focus of one candidate.

Bad to use the N word, even metaphorically

Via BOTW, according to this story in Friday's Cavalier Daily, President Casteen at the University of Virginia has denounced the statement of a University Medical Center employee, who at a recent staff meeting declared that the use of the term "Redskins" was likely as insulting to Native Americans as another racial term would be to African-Americans. A protest organizer explained, "It doesn't really matter in what context this word was used."

Summary judgment hearing in E.D. Va. suit over new Virginia abortion law

The Richmond paper reports here on today's summary judgment hearing before Judge Richard Williams of the E.D. Va. on the constitutional validity of the new Virginia law prohibiting partial-birth "infanticide."

Sunday, November 23, 2003

Now a warning?

Now that the elections are past, I discover this post, which suggests it would be illegal for a well-heeled blog in Virginia to advocate (or oppose) a local candidate for office without a disclosure to the campaign finance records people.

It is fortunate in this one instance that I never paid anything for this blog, unless you count the $45 hooded sweatshirt.

Ex-car salesman out on bond tries swindling eBay customers

As reported here, a former car salesman convicted of conspiracy to commit bank fraud simplified the task of an E.D. Va. judge in fixing his sentence, after the Court learned that the defendant had defrauded customers over eBay while he was out on bound awaiting sentence - he got the maximum.

Who is the most powerful person in state government?

This article in the Virginian-Pilot says that the coming showdown between Governor Warner and Speaker Howell over funding Virginia government will determine who is "the most powerful person in state government."

This article in the Washington Post tries forecast what Governor Warner will propose on Monday morning - and notes that he "will not attempt the politically unpopular task of imposing the sales tax on services offered by lawyers, accountants, barbers or dry cleaners." More likely targets for new revenue include increased income taxes, increased cigarette taxes, increased sales tax, and increased corporate taxes.

This article on the budget in the Daily Press quotes Senator Wampler as saying that "we've already reduced spending by some $6 billion, so $1 billion on top of that really gets into the core services and affects the quality."
The Post article notes that "Democratic and Republican lawmakers, lobbyists and members of Warner's administration predict that the governor's proposals could precipitate an all-out war in the Republican-controlled General Assembly early next year" and that some Republicans "believe that standing against tax increases is the very essence of Virginia's Republican Party."

On campus speech in Knoxville and the perils of e-mail

Bill Hobbs has this post about "the hate-speech scandal at the University of Tennessee." The UT College Republicans site has a collection of links to news coverage of the story. This Daily Beacon story outlines what it is about.

What happened, among other things, is that another fellow has gotten into trouble for sending out a stupid e-mail, which got sent inadvertently to and read by a whistleblower, who was no longer even a member of the group to which the e-mails were directed but his address was still on the list. Apart from the speech story, this is a story about perils of e-mail.

Questions about retrying the D-Day fundraiser case?

Via CrimLaw, I see that last week the Roanoke Times reported here that federal prosecutors in the W.D. Va. were undecided whether to reprosecute the fraud in fundraising case related to the National D-Day monument in Bedford.

Yesterday, the Lynchburg paper likewise had this story that on the one-year anniversary of the indictment, the defendant Richard Burrow wants closure.

More on the Haynes nomination

On Friday, the Paper Chase had this post about the nomination of William J. Haynes, II, to the Fourth Circuit, noting that he "has been criticized by Democrats for being partly responsible for several controversial Bush administration policies, including the indefinite detention of some US citizens as "enemy combatants" without trial, the refusal to designate prisoners held at Guantanamo Naval Base in Cuba as POWs under the Geneva Conventions, and the Pentagon's military tribunal plan."

Water discharge from new gas pipeline sinks farm land?

The Roanoke Times has this story on a farmer who claims that water discharging from a gas line created a sinkhole on his property in Wythe County.

More on coalbed methane in Virginia and West Virginia

Rory Perry has this post on WV law regarding who owns coalbed methane, and asking if I know the status of the Virginia Supreme Court case. His post links to the new West Virginia Supreme Court opinion, which declares that "[i]n the absence of specific language to the contrary or other indicia of the parties' intent, an oil and gas lease does not give the oil and gas lessee the right to drill into the lessor's coal seams to produce coalbed methane gas." In its discussion, the WV court observed: "There is a great temptation in this case, urged on us by both sides, to wave a wand and declare coalbed methane to be either “coal” or “gas.” The logic of either position is facially seductive; “coalbed methane” is indeed “methane” in that both have the same chemical composition; but “coalbed methane” is also intimately bound to the coal, which must be disturbed if coalbed methane is to be produced in paying quantities. . . . But the precise question we must answer in this opinion is not whether coalbed methane, for all purposes and in all cases, is “coal” or is “gas.” The specific question we must answer is whether a gas lease executed in 1986, before the widespread commercial production of coalbed methane in West Virginia, signed by a lessor who owned the land, coal, oil and gas, . . . conveyed to the oil and gas lessee the right to develop the coalbed methane, absent any specific language on the issue."

I don't know any more about the pending Virginia case than what's online. The case was fully briefed as of August, according to the Supreme Court's case information site, and it apparently was not among the September cases decided in October, or the cases argued in October, so I'm guessing it will be argued and decided next year, if there is (or has been) no settlement.

The assignments of error in the Virginia case are these:

1. The Trial Court erred in finding that, under Virginia law, the grant of coal rights does not include coalbed methane ("CBM") absent an express grant of CBM.
2. The Trial Court erred in failing to adopt the plain and common meaning of the term "coal" in the 19th century as presented in the defendant's uncontested evidence of such definitions that describe coal as a heterogeneous substance that includes gas, a meaning that was also supported by the defendant's uncontested evidence of the current meaning of the term "coal" as a generic term with constituent parts that vary greatly.
3. In the alternative, the Trial Court erred in failing to acknowledge the ambiguity in the term "coal" contained in the severance deeds at issue in this case, finding instead that the term unambiguously did not include CBM.
4. The Trial Court considered evidence outside the record on the issue of the meaning of the term "coal" as used in the 19th century.
5. Having failed to either find ambiguity in the severance deeds or to adopt the common meaning of the term "coal" as used in the 19th century and as supported by current expert testimony, the Trial Court erred in failing to apply the proper rules of construction that should be applied to the severance deeds, finding instead that the grantors retained an interest in CBM when they could not beneficially use or enjoy the estate without trespassing on the coal owner's estate; and the coal owner could not beneficially use or enjoy the coal estate without trespassing on the purportedly retained estate of the grantor in the CBM. To do so, the Trial Court erroneously relies on a "common law" right of the coal owner to release CBM in connection with its coal operations.
6. The Trial Court erred in adopting a simplistic construction of the severance deeds finding that the grantors on these severance deeds intended only to convey the solid core of the coal and none of its associated volatile components such as CBM. Specifically, the Trial Court held that "the only finding that would allow the Court to rule in favor of the coal owners is that the CBM is a constituent of the coal itself." In doing so, the Trial Court disregarded the law of Virginia on mineral rights, that mineral estates may include non-specified elements when those elements are substantially connected with or integrally a part of the granted estate. Here, CBM is substantially connected with coal and an integral part of the in situ coal.
7. The Trial Court erred in construing the severance deeds to find that the grantors retained an interest in CBM when the grantors could not beneficially use or enjoy the estate without trespassing on the coal owner's estate; and the coal owner could not beneficially use or enjoy the coal estate without trespassing on the purportedly retained estate of the grantor in the CBM.