Saturday, April 19, 2003

"Judging an egg fight is much more complicated than it looks"

So says the main force behind the 180th Annual Peters Hollow Egg Fight, to be held tomorrow near Elizabethton, TN, as reported here. The article notes that "Ruth Jones, 90, won the contest in 2001 after competing for 50 years."

On Tennessee's proposed ban on sales of junk food at elementary and middle schools

This commentary suggests the idea won't work.

Federal grand jury investigating Sundquist-era government contracts

The Knoxville paper has this report, which says the investigation has spurred consideration to limit certain kinds of government contracts in Tennessee.

Rev. Falwell's university delays opening doors on new law school until fall of 2004

This article describes the decision to postpone the opening of the new law school at Liberty University in Lynchburg

More on the Mathews County case

The Daily Press has this story on the outcome of the Supreme Court's Mathews County case decided on Thursday, which besides all the talk of requests for admission, resulted in affirming the decision that the County owns a boat landing.

Republican challenger alleged to have offered another $50,000 to run somewhere else

This article gives an account of allegations that a Republican challenging an incumbent Virginia Senator offered another challenger $50,000 not to run for the same seat.

On welcoming Philip Morris back to Virginia

This commentary notes on the movement of the company's headquarters from New York to Richmond that "Philip Morris USA contributes $1.7 billion annually to the Virginia economy in payroll, purchases, and taxes."

Judge Emory Widener taking senior status effective 9/30/03?

How Appealing noticed Judge Widener's name on this list of "future vacancies."

A summary of Judge Widener's biography is shown here. He served along with Judge Dalton as the only two W.D. Va. judges from 1969 until 1972, when he was appointed to the Fourth Circuit by President Nixon. In his practicing days, Judge Widener argued a challenge under the 24th Amendment to Virginia's poll tax before the Supreme Court of the United States (Harman v. Forssenius, 380 U.S. 528 (1965)); he also argued a number of cases before the Virginia Supreme Court.

The opinion in another case, argued by Judge Widener before the Fourth Circuit, reads like a script from TVLand:

"This is an appeal by Tianada Leonard, defendant below, from a judgment of the District Court awarding Leonard Helms, the plaintiff below, damages in the sum of $13,000 for serious injuries suffered by him in an automobile accident which occurred in Bristol, Virginia, when Miss Leonard was driving Helms's Cadillac automobile, with Helms seated beside her, and drove the car into a stone wall at a street intersection.
The parties reside in Bristol on the borderline between Virginia and Tennessee. Both unmarried and in their thirties, they had known one another for several years and frequently went out together. Customarily they drove about in the evening in the area of Bristol in Helms's car with the lady at the wheel, as she liked to drive the Cadillac." Leonard v. Helms, 269 F.2d 48 (4th Cir. 1959).

My favorite opinion by Judge Widener was and is the case of Johnson v. Carter. The case was about a defamation claim against the Commander in Chief of the Atlantic Fleet of the United States Navy, who allegedly defamed a base policeman who had given the admiral's daughter a warning for speeding on the base in Norfolk. The issue was whether the U.S. was the proper defendant under the Federal Tort Claims Act. Judge Widener was the dissenter on the original panel, but wrote the majority opinion when the majority of the en banc court split his way on rehearing. Judge Widener concluded that the CINCLANT was always acting within the scope of his employment, twenty-four hours a day, and if he could order ships about from his backyard while wearing civilian clothes, he could do the same to the policeman who stopped his daughter, without fear of interference from the courts.

$1,000 price of Democracy in Washington County

The local Democratic party is charging candidates for constitutional office a $1,000 pre-filing fee, which an anonymous party regular described as the "incumbent protection program," as reported here.

Apparently, Virginia law provides that "[e]very candidate for nomination for any office at any primary shall, before he files his declaration of candidacy, pay a fee equal to two percent of one year's minimum salary attached to the office for which he is candidate in effect in the year in which he files," so I guess the fee would be more if the nominees were selected by primaries.

"Appalachia a potential treasure trove of hydrocarbons, says USGS"

So says this short item from Alaska. The two-page fact sheet from the USGS can be found here.

Dominion Resources to pay $1.2 billion in Clean Air Act settlement

These reports from the Washington Post and the Richmond Times describe the settlement, which involves a fine and expenditure to make coal-burning power plants cleaner.

Earlier this week, the company announced a 27 percent increase in profit during the first quarter, as reported here.

Plea bargainer with IQ of 70 gets two life sentences for stabbing victim 40 times

The U.S. Supreme Court's Atkins decision had some bearing on the plea bargaining in the case, as reported here.

Newport News holds tax refund hostage to payment of 20 year-old traffic fines

The Virginia city is holding on to a woman's tax refund until she can prove she paid $70 from tickets in 1983, as reported here.

NYT book review: "Murder in Virginia: Southern Justice on Trial"

The Times has this review of a new book about a Virginia murder trial in the 1890s of three black women, "defended by three white lawyers, all Confederate veterans." The circuit judge, or one of them, was named Samuel Coleman.

E. Ky. road construction leads to coal and blast damage

The Louisville paper has this report on the expansion of U.S. 421 to the Virginia border.

OP gets fined for disturbing the peace

As written here, former University of Virginia basketball player Olden Polynice showed up two hours late for court, entered a plea of guilty, and was fined $450 for an incident in which he shouted at a city attorney who had prosecuted him for another charge.

In my undergraduate days, I thought of him as "Olden." He was the preppiest 7-foot black man I had ever seen. He had some troubles, though, in his student days (as recorded here) and these many years later he is still playing basketball but still getting his name in the newspaper for stories like this. In the Salt Lake City article, Polynice at age 38 "insisted he had taken responsibility for his actions, and he vowed his troubles with the law were over."

Another Va. S.Ct. case - the Virginia Birth-Related Neurological Injury Compensation Act

I left out a civil case yesterday - Berner v. Mills. In that case, the Court held that amends to the Virginia Birth-Related Neurological Injury Compensation Act to include professional corporations were not retroactive. The Richmond Times has this report on the case, quoting Robert Hall, who argued successfully for the plaintiffs.

Friday, April 18, 2003

More on water board standing case

The Richmond paper has this article on reactions to the Supreme Court's decision, including the landowner's comment that "[t]he county has wasted hundreds of thousands of dollars and spent four years trying to evade this challenge and to hide the impacts this project will have on the water quality."

This week's Virginia Supreme Court opinions in civil cases

In Allstate Insurance Co. v. Wade, the Supreme Court held among other things that the trial court did not err in refusing to bifurcate the trial between compensatory and punitive damages, in a case where liability was admitted. The language of the opinion suggests, however, that the circuit courts have the same discretion to order bifurcation as they do to order separate trials, which is a new point of law to many, I suspect. In addition, the Court rejected the argument that the insurer should have been allowed to try to deflate a punitive damage award by informing the jury that it and not the bad actor would be paying the punitive damages. This is an important case, I think, that trial lawyers (particularly those who handle injury cases) need to study.

In Shaheen v. County of Mathews, the Court announced a two-part test for determining when a party can withdraw admissions, and upheld the circuit court's decision to let the defendant off the hook for missing the admissions deadline in the case. One prong of the test was whether the admissions would, in effect, leave nothing left to be tried, a factor which supports allowing them to be withdrawn. The other factor was whether the withdrawal would prejudice the other party, in terms of the unavailability of evidence (rather than simply not winning without a trial). The opinion is by Justice Kinser, a former federal magistrate, and cited many cases applying the federal rule on requests for admission. The flip side of the opinion, I fear, is that trial court judges will feel more obliged to allow withdrawal of admissions, which many times are de facto measures of the plaintiff's willingness to do anything in the case. In state court in Southwest Virginia, the deadline in the rule on admissions is too often unenforced without justification.

In Harrell v. City of Norfolk, the Supreme Court added another wrinkle to the bewildering precedents which draw the line between governmental functions, for which cities and towns are immune, and proprietary functions, for which they are not. The function at issue in Harrell involved slippery crosswalk markings on city streets. The Court held the maintenance of crosswalk markings to be a governmental function as a matter of traffic control, rather than an issue of street maintenance like potholes and bumps in the road.

In Doe v. Isaacs, the Supreme Court held in a 5-2 decision that fleeing the scene of an accident (thereby leaving the plaintiff alone and injured), without more, was not a fact that would support an award of punitive damages. "John Doe" was the bad actor here, he ran off after pleading with the others not to call the police and was never seen again. Senior Justice Compton's opinion for the majority somewhat knocks plaintiffs' counsel for citing case law from other states and for citing an unpublished Fourth Circuit opinion, saying this: "Parenthetically, we observe there is abundant law on this subject in the opinions of this Court. Therefore, we do not need guidance from the cases of other jurisdictions relied upon by the plaintiffs. Indeed, they urge upon us an unpublished decision of the United States Court of Appeals for the Fourth Circuit . . . . But the Fourth Circuit's Local Rule 36(c) provides, in part: 'Citation of this Court's unpublished dispositions in briefs and oral arguments in this Court and in the district courts within this Circuit is disfavored, except for the purpose of establishing res judicata, estoppel, or the law of the case.' If reliance on such a disposition is disfavored in the federal system, surely such reliance will not be favored in the state system." Boy, oh boy, that's gratuitous stuff there, which will have bad consequences. Why not just say that the Court disagrees with those other cases, rather than criticize the attempt to use them? The plaintiffs' lawyers were pushing the envelope in this case, trying to change the law a little bit, so it can hardly be a surprise that their arguments would cite outside authorities, which the trial court judge evidently found convincing.

In Eden v. Weight, the Supreme Court agreed with the trial court judge who ruled in a constructive fraud case that the jury's award should be thrown out because plaintiffs failed to prove reliance. The gist is that plaintiffs knew too much. The case involved a corporation that owned the Bistro Bistro restaurant in Arlington - still a good place to eat, so far as I know.

In State Water Control Board v. Crutchfield, the Court ruled that landowners had standing to appeal the issuance by the State Water Control Board of a permit allowing the discharge of treated wastewater into the Pamunkey River next to their property. The Circuit Court for the City of Richmond had concluded that there was no standing, the Court of Appeals reversed, and the Supreme Court took the case because of its "significant precedential value." The opinion notes that in "environmental cases" for standing "it generally is sufficient if a plaintiff establishes that he uses the affected area, and that he is a person 'for whom the aesthetic and recreational values of the area will be lessened' by the defendant's actions." The opinion also notes that the petitioners as landowners with riparian rights "have the right to make reasonable use of the water flowing past their land, and they have a right to enjoy the recreational and aesthetic advantages that are conferred on such land adjoining a watercourse." This opinion strikes me as unimpeachable, and makes me wonder what the circuit court and the Water Control Board were thinking.

In Wilby v. Gostel, the Supreme Court by a split decision concluded that the trial court was correcting in entering a nonsuit as to all the "claims" in the case, even though it had previously granted a motion for partial summary judgment based on contributory negligence. The rationale for this ruling is that plaintiff was claiming both simple and gross negligence in the first two "counts" of the motion for judgment, and contributory negligence is not a defense to a gross negligence claim, therefore no "claims" had been resolved. Justice Kinser dissented, and I think she is right. What is a "claim," she asked, and I wonder also, what is a "count"? There are no provisions regarding pleading in "counts" in the Rules of Court.

In USAA v. Hertz, the Court decided the answer is "yes" to the question of whether "a rental car company that maintains liability insurance coverage on its rental fleet by self-insuring under the provisions of Code 46.2-368 is required to provide primary liability coverage to its customer on a motor vehicle rented in Virginia."

In Simon v. Forer, the Court rejected one of those nutty statute of limitations theories that goes against what every Virginia lawyer thinks he or she knows about how the tolling statute Va. Code § 8.01-229 is supposed to work. The plaintiff filed the first case with 15 months left in the 2-year limitations period, the case went on for 13 months before it was nonsuited, and then plaintiff refiled outside the six month tolling period allowed by section 8.01-229(E)(3). The argument was that under that section, plaintiff can sue either within the six months, or the original limitations period, whichever is longer (which is true), and that the original limitations period was tolled during the pendency of the first case before the nonsuit (which is baloney, since there was a nonsuit, to which section 8.01-229(E)(1) expressly does not apply). So held the Supreme Court, in more diplomatic terms.

In Santen v. Tuthill, the Court held: (1) a guilty plea entered in general district court then withdrawn by an appeal to circuit court cannot be used as evidence in a subsequent civil case, (2) no proper foundation was laid for admission of breath test evidence in the civil case, and (3) the finding for the agent meant that the principal could not be liable.

In Pulte Home Corp. v. Parex Inc., the Supreme Court sustained the manufacturer's demurrer to the builder's cross-claims for breach of express warranty, breach of implied warranty, indemnification, and contribution in an EIFS case. The express warranty claim was rejected in part because manufacturer had filed a motion to crave oyer as to any written warranties, and the builder said it didn't have any (yet). The implied warranty claim was dismissed on the grounds of lack of privity, as apparently the trial court held that the builder was seeking only consequential damages. The indemnification claim was rejected because there was no express contract and because the manufacturer had never been found to be actively negligent. The contribution claim was tossed because the circuit court had ruled separately that the original plaintiffs had no claim against the manufacturer.

Congressman Boucher and Southwestern Virginia Technology Council spring banquet and tech expo

Here is the workshop agenda for the workshops preceding the annual Rick Boucher technology dinner, to be held at the Southwest Virginia Higher Education Center in Abingdon. Among the workshop speakers is Delegate Joe May from Leesburg, who chairs the House Science and Technology committee and JCOTS, the Joint Commission on Technology and Science.

Cold winter did not increase coal sales, hot summer could increase coal prices

The AP has this report on electric companies operating with lower inventories of coal, and the endless optimism of coal companies looking for better prices.

ARC chairwoman vows to persevere despite funding cuts

This article describes the commitment of Anne Pope, the new chairwoman of the Appalachian Regional Commission, to continue its efforts to improve life in Appalachia (as defined by Congress) in spite of reduced funding.

Still no coffee mug from ABA Journal eReport

I sent in another goofy story which was printed here, but still no mug.

More "lowballing" from Virginia Democrats

This Washington Post article describes the modesty of the goals stated in public by Governor Warner and other Democrats for the 2004 elections, and observes that "[t]he many Democrats who feel sorry about their status as the minority party have perfected the art of low-balling, saying they can still proclaim victory in the fall if they hold the same number of General Assembly seats they have now."

Hampton hotel owner sued for $1 million by guest from Roanoke who got "crabs" from bedding

This report says it all.

TN House votes against "free golf for life" deals for state officials like the one Sundquist got

As reported here, Tennessee legislators voted on Thursday to prohibit state agencies from giving away "free golf for life" deals at the state's parks as was done for Governor Sundquist, who shut down 14 parks for a while during his term in office.

Sabato says Tennessee governor could be dark horse as Democrat VP candidate in 2004

The Knoxville paper has this report, which cites U.Va.'s Professor Larry Sabato.

"Beach city keeps after rude, lewd behavior"

So says this report in the Washington Times on efforts by the City of Virginia Beach to enforce its prohibitions on bad language and bad behavior at the beach. Virginia Beach continues to be the site each summer of the Virginia State Bar's annual meeting.

Manassas woman seeks $100k against fitness center and trainer who dropped 5-pound dumbbell on her head

This story describes the lawsuit filed by William Henry on behalf of the injured woman.

More on Senator Stolle's ethics charge against former judge Askew

The Washington Post has this story, which notes that "Stolle's complaints threatened to revive the partisan and racial furor that dominated much of the winter legislative session, when Republican-led committees questioned Askew about whether she had failed to disclose a sexual harassment complaint involving her that was eventually settled by the nearby city of Hampton." The article notes that "Stolle said he had filed similar complaints against sitting judges and lawyers seeking judgeships, including one this spring against a Republican judge who failed to disclose his arrest for soliciting a prostitute. That southwest Virginia judge was forced from the bench."

As described here, an angry Democratic Senator and Askew supporter has demanded an immediate meeting of the Senate Courts of Justice committee to have Senator Stolle explain his actions.

Senator Stolle is a former police officer and is now a partner in the Norfolk law firm of Kaufman & Canoles.

Sinkhole suits blaming state and local officials set for trial in August

As reported here, "three lawsuits filed by Suffolk residents who blame city and state officials for sinkholes in their yards will go to trial in August," now that the circuit court judge has rejected the defendants' special pleas to dismiss the cases. The plaintiffs claim "that the city and state have refused to fix drain pipes that were not properly installed near their yards." One plaintiff was quoted as saying "I'm paying taxes on a house that's becoming valueless because of sinkholes that look like bomb craters in my yard."

The Commonwealth always wins when justice is done

That's what George Warren used to say when prosecuting cases in Bristol, and the same theme is expressed in this Roanoke Times editorial on the need to reform the 21-day rule in Virginia's criminal cases, since there's nothing just about convicting the innocent.

U.S. attorney for W.D. Va. investigates whether employees fired for aiding federal probe

According to this report, federal authorities are questioning whether three former employees of Henry County lost their jobs because of their cooperation with the grand jury investigating the embezzlement case of the former county administrator, who has convicted last year for taking $778,000 from the public service authority.

Tech spring football game to benefit former Hokie basketball player who lost arms and legs to meningitis

As reported here, Virginia Tech is charging admission this year for its spring football game, with the proceeds to go to the school's fund for Rayna Dubose, the young woman who came to Tech on a basketball scholarship. The article describes contributions to the fund, which is maintained by the Tech Monogram Club.

Another reason for coyote bounties - to protect foxes

According to the author of this account, the proliferation of coyotes threatens the native fox population.

On the other hand, foxes are not universally admired. SOme years ago, my grandmother (now deceased), while living alone in her 80s, decided one day that she heard a fox in with her chickens, so she took down Grandpa's shotgun, walked up the hill, and shot what turned out to be an orange cat.

Plaintiff drops wrongful arrest case against Johnson City in mid-deposition

This article in the Kingsport Times tells of a plaintiff who decided during her deposition she would rather drop the case than finish being deposed. Erick Herrin represented Johnson City.

Thursday, April 17, 2003

Virginia No. 1 as source of guns recovered at crime scenes in state of NY

This article in Newsday reports, among other things, that Virginia was the leading "source state" for guns recovered at crime scenes in the state of New York, according to an expert witness in a gun liability case now be tried in Brooklyn.

Virginia state bar's only Chad running for Commonwealth's attorney in Wise County

My good friend Chad Dotson, Republican candidate for Commonwealth's attorney, is profiled here in the Kingsport paper. Formerly, Joey Carrico was the Commonwealth's attorney in Wise and one of the youngest in Virginia, but he was lured to Richmond to work as the No. 2 under Attorney General Jerry Kilgore after Elizabeth McClanahan left to join the Court of Appeals.

In 2000, Virginia Lawyers Weekly reported in the aftermath of the Bush-Gore election that there were no Chads among Virginia's lawyers, hanging, dangling or otherwise. Mr. Dotson turned himself in, as reported in this note (subscription required), which says:

"Late last year, you may recall, in our Election Roundup Edition of Hearsay, we noted that according to the online version of Martindale-Hubbell, there are no lawyers in Virginia named "Chad."

Please note the all-important attribution. There are no lawyers in Virginia named "Chad". Sort of.

A Mr. Chad Dotson of Norton, a lawyer in that fine city, called up and told us that his friends had been egging him on to call us on the apparent omission. He also was getting really tired of all the Chad jokes. "

Tall tales from judges' speech reported in Virginia Lawyers Weekly

This week's VLW was spiced by this report (subscription required) of judge tales told by two judges, Campbell County Circuit Judge J. Samuel Johnston Jr. and New Kent County Circuit Judge Thomas B. Hoover, including the following:

"Hoover told the one about the 17-year-old defendant who sat at trial and watched the surveillance tape of the drug deal he was charged with. The defendant said, "Hey! I'm on TV!" "The lawyer kicked him out of the way and said, 'Go ahead and just plead guilty now,'" Hoover recollected.


This one always bears repeating. Johnston repeated it:

A peeping Tom was on trial, and a handwriting expert was testifying about a note the accused had left, which said, "I want to have sex with you." The note was passed around the jury box until it reached a juror who had dozed off. Wakened, he took the note, read it, looked back at the female juror who had handed it to him, and put it in his pocket.

After which, Hoover chimed in, the judge said, "I need that note, please." "Oh no, judge," the juror said. "This is between me and her."


Johnston again: Farmer Jones was brought in to testify about the character of a litigant. He'd known her all his life, Jones stated. They grew up together, their families were friends. What, he was asked, was her reputation for truthfulness and veracity?

Jones pondered the question, then responded that he'd never known her not to tell the truth. "As for her veracity, some say she will and some say she won't," he said.


Johnston recalled a Judge George Abbott in Appomattox County, who found one of his former clients before him faced with criminal charges. The client was delighted — Abbott had gotten him off the earlier time. Now-Judge Abbott found him guilty. Disappointed, the defendant said, "You were a hell of a lot better lawyer than you are a judge."


And, finally, there was a request Johnston received for early release from jail. The reason? "My mother's dying of prostate cancer."

How serious must a state court drug conviction be to support an enhanced federal sentence

In this published opinion issued today, which identifies the defendant as "BASEEM SHAKIR WILLIAMS, a/k/a Gregory Burgess, a/k/a Donnell Conklin, a/k/a Warren Kennedy," a panel of the Fourth Circuit issued with the question of what is a "serious drug offense" for purposes of sentence enhancement. The opinion was written by Judge Robert R. Beezer, a senior status judge from the Ninth Circuit, sitting by designation (and also a double Wahoo).

VDOT's debt burden

"Virginians now recognize that Gilmore bought himself a ton of political good will with the state's credit card," according to this editorial in the Roanoke Times.

Circuit judge hears FOIA appeal on documents of search for Commonwealth's attorney

As reported here, Judge Flannagan took under advisement the matter of the appeal made to him on the Freedom of Information Act request of a county resident concerning sheriff's department records of a search for the Commonwealth's attorney, who was briefly reported missing. County Attorney Lucy Phillips represented the sheriff's department.

Official shad planking held again for 1,000 Virginia politicos

The Washington Post has this report on this year's shad planking, "the annual rite of spring in Virginia politics". The article notes that Del. Brian Moran plans to run for the Democratic nomination for Attorney General in 2005. The article notes that the event has lost some of its importance, "but throngs still descend on this Southside hamlet to pay homage to the tradition of picking through spiced filets of shad, an oily, bony fish that's smoked overnight on wooden boards beside hot coals." The Richmond Times has this report, which notes that Virginia Congressman Bobby Scott, who opposed the war in Iraq, received a few boos when introduced.

Virginia Crime Commission takes on 21-day rule

As reported here, the Virginia Crime Commission has a task force studying how to revise the 21-day rule to allow motions based on after-acquired evidence more than 21 days after conviction. The study group "consists of lawyers, legislators, judges, prosecutors and a Supreme Court justice" and will have its first meeting on April 28.

Anti-affirmative action groups file complaints against Virginia Tech

The Roanoke Times reports here that two anti-affirmative action groups have filed complaints with the U.S. Department of Education's Office of Civil Rights regarding admissions practices.

State senator files ethics complaint with state bar against former judge Askew

Senator Stolle from Virginia Beach has filed a complaint with the Virginia State Bar against former Newport News Circuit Court judge Verbena Askew, claiming that she "lied on questionnaires submitted to the legislature's Courts of Justice Committees in 2001 and 1999," according to this report. Ms. Askew was the first African-American woman to serve as circuit court judge in Virginia. The legislature refused to reappoint her during this past session of the General Assembly. Askew is now running for state senate, and her campaign consultant Paul Goldman "accused Stolle of waging a 'continuing campaign of intimidation' in an attempt to undermine her candidacy,"

Another Virginia sheriff's deputy strikes out in federal court

This article describes dismissal of federal employment claims brought by a deputy sheriff in the E.D. Va. - and the plaintiff was represented by Elaine Bredehoft's firm, very effective lawyers so far as I can tell.

More on the return of the Equal Rights Amendment

In case you can't remember back that far, the ERA was not passed by enough states to meet a deadline that expired 20 years ago, but advocates are still pressing forward with it in the states that never ratified it, including Virginia, as reported in this article, which notes that the effort in Virginia did not get out of committee in the recent legislative session.

Wednesday, April 16, 2003

UMWA to protest new "Hillbillies" show at shareholders' meeting of CBS parent

Cecil Roberts says the mine workers will be in New York on May 21, according to this report, to let Viacom know that "to take a poor rural family, place them in a Hollywood mansion and ridicule them on national television -- is repugnant to me and to the union members I represent."

Last week, Mr. Roberts was blasting proposed amendments to the Coal Act, as shown in this press release, which includes Mr. Roberts' statement that "The UMWA fully intends to call on our friends in Congress to once again help us protect these benefits."

Declining tobacco quotas

This KY article describes the effects of falling tobacco quotas in Appalachia. One person interviewed said ""The way the county is changing with development, there may not be anyone to replace today's younger tobacco farmers when they retire in 25 or 30 years."

"Taxes to be early focus for fall campaigns"

As reported here, "Republicans are preparing to portray Warner and the Democrats he supports in this year's House and Senate races as apostles of higher taxes through tax reform. Warner and his fellow Democrats reject the claim and say they are ready to battle over taxes as an issue of basic fairness."

More on the big verdict in Fredericksburg

Additional details about the case of the young government lawyer-plaintiff who was awarded a record verdict this week in a medical malpractice case appear here.

Archivists find records of slaves' suits for freedom in Missouri

This article notes that Virginia, like Missouri, once had a program of paying lawyers to represent slaves in freedom suits.

Hearing in case of laid-off AG employees

This article describes the hearing held today in the lawsuit filed by 23 former AG employees, contesting their lay-offs. The article explains that "[l]awyers for Attorney General Jerry Kilgore argued Wednesday that the Virginia Constitution exempts the attorney general's office from worker protections afforded to employees of other state agencies."

How many contempts in profanity-laced outburst in courtroom

From this opinion released today by the 4th Circuit today: --

"At Murphy’s sentencing hearing, the district court sentenced him to 130 months imprisonment—seven months less than the guidelines maximum—on Count Nine and a consecutive term of 60 months on Count Ten.

At the conclusion of the hearing, the following exchange occurred:

MURPHY: You should have just gave me the other damn seven—the other seven months is what you should have did, stinky mother fucker.

THE COURT: Mr. Benya—Mr. Murphy, you are summarily found in contempt of this court—

MURPHY: Just give me the other seven months.

THE COURT: You’re summarily found to be in contempt of this court. I sentence you to six months to be served consecutive to any other sentence imposed.

MURPHY: You should have just gave me the other seven months is what you should have done.

THE COURT: Mr. Murphy, I find you again in contempt of this court and you’re now summarily found in contempt for a second time and you’ll serve an additional six months consecutive to any sentence—

MURPHY: What about that? What about that? Serve that, mother fucker. . . .

THE COURT: Mr. Stone, just a minute. Mr. Murphy—


THE COURT: You just gave the finger to the court. That will be a third contempt of court and that’s six—

MURPHY: Add another one to it.

THE COURT: —six more months at the end of your sentence. Well, that’s a quick year and a half.

J.A. 57-58. In a written order, the district court noted that Murphy initiated the exchange, shouting in a loud and agitated voice even as marshals attempted to remove him from the courtroom. The court found that Murphy’s conduct constituted three separate instances of contempt, and sentenced him to three separate six-month terms to be served consecutively to the sentence he was already serving."

The Fourth Circuit held that Murphy could be punished only once, not three times.

Summary judgment granted for one group of defendants in OxyContin case

Judge Jones issued this opinion last week.

New judge gets settled in E.D. Tenn.

This story recounts the first few days on the bench for the new federal judge in Knoxville, Thomas Varlan.

George Allen says his wife will be great corporate director and is already loved by all of Virginia

There's no holding back Senator Allen when it comes to talking about his wife, as evidenced by this account.

George Allen seems to be happy all the time. I've never seen or read anything about him since 1993 that made me think he was down, regardless of the circumstances.

I like his comments on the case of former Senator Torricelli from New Jersey, who was never quite indicted even though the charges against others seemed to implicate him, too. As recorded here, Senator Allen said this: "It reminds me of a story here in southwest Virginia about a horse thief," Sen. George Allen (R-Va.) said on the CNN show "Crossfire." "And the jury goes through the whole case and they say, 'Not guilty, but you have to return the horse.'"

Just when you thought it was safe to drive in downtown Richmond

"Richmond could be poised to give electric streetcars another try," according to this report.

Virginia Democrats focusing on local rather than state government seats

So says this article in the Washington Post, which notes that "[m]any say that, even if they won a state seat, they would be little more than lonely voices shouting against a band of conservatives who dominate state politics," and "[a]lso dampening Democratic desires is recent redistricting that gave Republicans an edge in most races."

Western Virginia CLEC and wireless provider says view from bankruptcy is rosy

This report describes the financial circumstances of nTelos, which borrowed lots of money in an attempt to become a major telecom player at just the wrong time and wound up in bankruptcy. Unlike some telecom newcomers, the company formerly known as CFW Telephone (the CFW being "Clifton Forge - Waynesboro") is over a hundred years old and as recently as 4-5 years ago was extremely profitable, but must have guessed wrong on itsexpansion plans.

County moves to invalidate citizen petition to fix courthouse

This story describes a motion filed on behalf of a county board of supervisors to invalidate a petition for courthouse improvements.

Telecommunications in the Southside

This Virginia Business article describes the role of "e-Dan," Danville's municipal broadband network.

Three Richmond-area endorsements for AG candidate Baril

Republican Steve Baril of the Williams Mullen firm has picked up the endorsements of three figures on the Richmond business scene, including business lawyer Gordon Rainey from Hunton & Williams, as reported here.

I had always thought of Hunton & Williams as the Democrat firm, what with former governors Baliles and Robb and Justice Powell and so on, which shows how little I know about it.

Tuesday, April 15, 2003

If your gun is missing a few parts is it still a "firearm"?

Let the jury decide, says a panel of the court of appeals, in this opinion.

Va. court of appeals splits 8-3 on issues of force and intimidation

Among the dissenters to this opinion where Judge Steve Agee, now a justice on the Virginia Supreme Court.

Virginia Supreme Court takes on two consumer protection appeals

The Virginia Supreme Court has granted petitions for appeal in two consumer protection cases, here and here, predictably with the consumer as appellant in both cases. The Virginia Consumer Protection Act remains somewhat uncharted territory, as the appellate cases are few, but these days it requires review in almost every kind of consumer dispute because it possibly eliminates many elements that bog down common law tort and warranty claims (and it allows for attorneys' fees).

More on Judge Luttig's dissent

How Appealing had this post, beginning "Judge Luttig isn't happy about something."

Virginia Supreme Court bounces habeas petition in death case for too many pages

As reported here, "[t]he Virginia Supreme Court returned a habeas corpus appeal for convicted killer Edward Nathaniel Bell April 10 because it exceeded the court’s 50-page limit." The petition, filed by attorney Roy Bradley, was 97 pages. The article states the petitioner has 10 days in which to refile a conforming petition.

Tobacco settlement payments made on time

This AP story quotes Virginia Attorney General Kilgore as saying, "This is great news."

Forbes reports here the prospects for the states getting all their tobacco money are "still precarious."

Prosecutor who resigned was also working campaign finance law investigation

The Prince William County assistant commonwealth's attorney was working as special prosecutor in the investigation of possible campaign finance law violations in Loudon County, as reported here. The investigation was about a local citizens group accused of having "operated as an unregistered political action committee by paying for advertisements criticizing members of the board of supervisors without disclosing the organization’s financial supporters," according to the article.

Split decision on excessive force claim leads to remonstration on failure to use rehearing to wipe out bad panel decisions

In a split decision, a panel of the Fourth Circuit reversed the district court decision that plaintiff had not suffered a constitutionally excessive use force, where the case involved, according to the majority, the following facts: "This appeal arises out of an incident in which a North Carolina deputy sheriff knocked Edward Arthur Jones to the floor in the sheriff’s office and then jumped on him, crushing Jones’s nose, lacerating his lips and nose, and bruising his ribs. Prior to the deputy’s use of force, Jones, although drunk and yelling obscenities, was unarmed and in a secured room; moreover, Jones maintains that his wrists were handcuffed behind him. It is undisputed that, at the time the deputy initiated force, Jones was not under arrest or suspected of any crime; rather, he had voluntarily come to the sheriff’s office seeking assistance.

Judge Luttig dissented, concluding that the deputy was entitled to qualified immunity based on Robles v. Prince George’s County, Maryland, a fairly notorious case, on which rehearing was denied over Judge Luttig's dissent. In today's opinion, Judge Luttig concludes: "it is apparent that different qualified immunity principles have been applied by the majority in this case than were applied by the panel in Robles. Although it would be of no relevance for the disposition of today’s case, I would like to think that Judge Motz has reconsidered her concurrence in Judge Wilkinson’s opinion in Robles based upon the principles of law that I laid out in dissent in that case. . . ."

Judge Luttig also bared his views on what he views as a dangerous trend within his own court, which merit quoting at length:

In recent years, it has become more common on our circuit to attempt to add to, subtract from, or recharacterize the facts recited and relied upon in a challenged panel opinion, or even to fine-tune, if not fundamentally reshape, the legal analysis undertaken by the original panel, in the course of opinions respecting the denial of rehearing en banc. . . . These opinions respecting the denial of rehearing en banc are cloaked as mere recitations of the facts and reasoning of the panel opinions, not as revisions of those opinions. But it is evident from a comparison of these opinions with the original panel opinions that the former actually are attempted revisions of the latter. In fact, not infrequently, the fullness, depth, and length of the subsequent writing confirms that it is nothing short of a rewriting of the panel opinion from scratch in response to arguments and authorities that were not considered or addressed by the panel.

These attempts at revision of binding panel opinions typically follow upon the identification of errors in the panel’s factual recitation or flaws in the panel’s legal analysis by other members of the court who, by their own written opinions, have drawn the panel opinion into question. That such attempts at revision prove irresistible on occasion is understandable; upon revelation of errors or oversights in either fact or law, there is a quite natural instinct to correct the error or oversight in anticipation of further review of the original decision by the en banc court or Supreme Court or in an effort to forestall altogether any further review. But because these kinds of revisionist writings cannot be and are not the binding authority of the circuit, they ultimately disserve the court and the public, in addition to justifiably confusing the bar and the bench as to the law of the circuit. It is our solemn obligation in opinions not only to come to the correct conclusions under law, but to support those conclusions with full reasoning that incorporates and honestly addresses the relevant facts and precedents. I have long believed that the federal courts too often fall short in the discharge of this most important of our obligations. But be that as it may, the formal release of an opinion of law on behalf of the court is the final step in the court’s deliberative process, not the first or merely another along the way toward the final decision. Identically as issued by the responsible panel, the panel decision is the binding law of the circuit.

Of course, we in the judiciary can make mistakes just like anyone else. We can fail to include relevant facts or even misstate facts. We can overlook authorities or misread them. From time to time, we can even misanalyze a case completely. But our obligation when we do err in these regards is to admit our errors forthrightly and correct them in opinions that are, themselves, binding. We owe nothing less to the parties and the public whom we serve. Indeed, the public respect that the judiciary enjoys is attributable in no small part to our institutional insistence upon the open and formal admission and correction of our misstatements and omissions. We can scarcely criticize others for misstatements, omissions and analytical errors if we turn a blind eye toward, rather than admit, our own.

The developed process for addressing the judicial error is the grant of rehearing (or of rehearing en banc) and the official correction of the error. Thus, if a convincing argument is made by a colleague in opposition to the denial of rehearing en banc (or by a party in a petition for rehearing en banc) that the panel has erred in the material facts predicate for its disposition or in its analysis of the law, rehearing by the panel — on the submissions if more is unnecessary — is available to address the argument squarely in a revised, but binding, opinion for the court. Or if the argument is of determinative importance and seemingly unanswerable within the four corners of the analysis upon which the panel members can agree, the argument may be addressed by the full court sitting en banc. But it is not the established process, and ought never become such, that the authoring or another judge attempt the correction of factual or analytical errors or omissions in the panel opinion through a separate writing respecting a petition for rehearing or rehearing en banc. The reasons that this practice of post-hoc rationalization must be discouraged are many, and need not be canvassed fully in the context of today’s opinion. But two of these reasons are of especial importance, and deserve notation even in a passing discussion. First, the practice undermines respect for the courts, by leaving the parties and public bound by an opinion that at least one member of the panel has effectively acknowledged was factually or analytically inadequate, at the same time that it consigns the losing party to the appeal of a binding decision that is factually incorrect or legally unsound, but that is made to appear to the reviewing court as less deserving of further consideration by the gloss superimposed by the nonbinding opinion subsequently issued. Second, it sows the seed for confusion among the members of the bar and bench as to what the law actually is, i.e., (where the facts are subsequently added to or subtracted from) whether the principle of law stated in the panel opinion is that confined by the facts as recited in that opinion or those as recited in the subsequent nonbinding opinion, or (where the principle of law itself is modified) whether the governing principle of law is that in the original panel opinion or that in the later opinion. And, in fact, it is not uncommon for the district courts of our circuit, as well as counsel, to cite to and to analyze our separate writings respecting the denial of rehearing en banc as if these writings, rather than the panel opinions that these writings seek to rehabilitate, might be the binding law of the circuit. . . .

FTCA claim dismissed as injuries resulted from "discretionary function"

In this opinion, Judge Jones dismissed plaintiff's claim against the U.S. under the Federal Tort Claims Act because the claim was based on park maintenance, a "discretionary function" within the exceptions to the government's liability under the Act.

AOL files five anti-spam lawsuits in the E.D. Va.

As reported here and here and here, AOL is suing John Does for sending junk e-mail to AOL addresses. The cases "resulted from about eight million individual spam complaints from subscribers, most of whom used a "Report Spam" feature AOL introduced last fall, the company said on Tuesday." AOL is seeking relief based on allegations "that the defendants are in violation of the Virginia Computer Crimes Act, the Federal Computer Fraud and Abuse Act or the Washington state Commercial Electronic Mail Act."

They might also name a hidden location after the vice-president

The debate goes on in a Northern Virginia school system over a proposal to name a school after Secretary of State Colin Powell, as reported here.

What happens when a Virginia ex-prosecutor and detective decide a man they prosecuted is innocent?

For one man in the penitentiary, the answer is nothing, according to this story in the Washington Post, which notes that the "only evidence of innocence a Virginia court will consider more than 21 days after a judge imposes a sentence is DNA."

Anti-diversity commentary against real-world results

This op/ed piece from the Richmond Times websites says campus diversity achieved by racial preferences in admissions is not so great.

On the other hand, without affirmative action, a magnet school in Fairfax County is admitting only three black students for next year, as reported here.

$6.5 million medical malpractice award in Fredericksburg lawyer-plaintiff case

As reported here, the award will have to be reduced to the statutory caps. The plaintiff was a 32 year-old lawyer.

Malcolm McConnell and Jason Konvicka represented the plaintiff.

Ruling on tobacco appeal bond spares Tennessee from borrowing for roads

The compromise on the appeal bond in the Philip Morris/Altria case in Illinois will allow the company to make its tobacco settlements and allow Tennessee to avoid borrowing for roads, as reported here.

Coal owners seeks attorneys' fees and costs from citizens who initiated permit context

As reported here, two area companies will have a hearing this week on their claim for restitution of attorneys' fees and costs related to a citizen's challenge of surface mining permits.

One person's junk is another's treasure

Some Danville residents are upset at the city's new junkyard law, as reported here.

"Incumbency insurance"

That's what this Daily Progress commentary calls redistricting in Virginia.

Assistant commonwealth's attorney resigns on account of association with target of federal investigators

This story in the Washington Post describes the resignation of an assistant prosecutor.

While talk begins about a new law school in S.C., things aren't great at the established one

According to this report, South Carolina laments that its law school does not have the status or resources of U.Va. or UNC, and the university president "said he doesn't think South Carolina needs a second law school -- an idea advanced last week by a group of lawyers and judges who want to found a 450-student private school in Charleston."

Some slow opinions from the Fourth Circuit

How Appealing notes the following: "today the Fourth Circuit issued four separate opinions in cases that were pending before the same panel for more than two years after oral argument had occurred."

Monday, April 14, 2003

Events next week - council election and new court of appeals judge

On Tuesday, the 28th Circuit will select a new representative to the State Bar Council. Kurt Pomrenke is a candidate from Bristol. The current council is shown here. There are a lot of good people on Bar Council, yet somehow most lawyers I've ever heard speak of it are mostly alienated from and by the Council's activities - the common theme is that the Council is dominated by resume building lawyers from the cities who want to use it as some kind of political springboard, so they are always looking for ways to go about doing good. The core activities of the State Bar are ethics, discipline, and admissions. On ethics, the recent case dealing with lawyer advertising Judge Richard Williams was highly critical of Bar Council, as described here.

On Wednesday, Elizabeth McClanahan will be sworn in as a new member of the Virginia Court of Appeals, at the Southwest Virginia Higher Education Center in Abingdon. Ms. McClanahan is an accomplished lawyer with expertise in mineral law, particularly coalbed methane. Most recently, she has been the No. 2 in the Attorney General's office. Her biography from the AG website is here. She is the second lawyer from the Penn Stuart firm selected as judge in recent years, U.S. District Court Judge James P. Jones is the other.

The appellate jurisdiction of the Court of Appeals includes the following, as listed here:

1. Any final decision of a circuit court on appeal from (i) a decision of an administrative agency, or (ii) a grievance hearing decision issued pursuant to § 2.2-3005;
2. Any final decision of the Virginia Workers' Compensation Commission;
3. Any final judgment, order, or decree of a circuit court involving:
a. Affirmance or annulment of a marriage;
b. Divorce;
c. Custody;
d. Spousal or child support;
e. The control or disposition of a child;
f. Any other domestic relations matter arising under Title 16.1 or Title 20;
g. Adoption under Chapter 12 (§ 63.2-1200 et seq.) of Title 63.2; or
h. A final grievance hearing decision issued pursuant to subsection B of § 2.2-3007.
4. Any interlocutory decree or order entered in any of the cases listed in this section (i) granting, dissolving, or denying an injunction or (ii) adjudicating the principles of a cause.

Just your typical beauty queen's career path

"I would like to practice civil litigation in a small firm and will venture into politics," said the current Miss Virginia, as quoted in this article. Miss Virginia is Jennifer Pitts, a third-year student at the George Mason law school.

Supervisor candidates take the tax pledge in Fairfax

The WaPo reports here that candidates for the board of supervisors in Fairfax County are signing a pledge not to raise taxes, which the article describes as "a first-ever commitment by GOP candidates for local office in Virginia." The opponent of one of the pledgees declared that "a tax cap would devastate public safety and services for the poor and schoolchildren in a county that cannot tax incomes but must rely increasingly on property tax revenue to balance its budget."

Ntelos in bankruptcy files earnings report, details internet figures

One item of interest from the Ntelos earnings report was this: "Total DSL subscribers at year-end were 5,534, a 38% increase over year-end 2001."

I don't know whether that is a lot or a little, considering that Ntelos covered some small towns where the population within the range of DSL might be far less than in the more densely-populated urban areas.

More money needed from someone else

The poll described here shows that Virginians think funding for education is too low but don't want to pay any more in taxes.

Democrats still dogging Republicans for defunding Virginia Exile gun crime program

Democrats are criticizing Republicans for not funding the continuance of the Virginia Exile program, which resulted in extra jail time for criminals caught with guns, and even Republican former Governor Gilmore was disappointed about it, according to this report. The program involved state-federal cooperation in Virginia's larger cities targeted convicted felons caught with guns.

Black lung settlements prohibited

The Fourth Circuit held in this opinion that federal law prohibits certain kinds of settlements of black lung claims. Here the Court affirmed unraveling a settlement that was almost 20 years old.

Fourth Circuit finds First Amendment right to loiter on Virginia bridges

In this opinion, the Fourth Circuit upheld a constitutional challenge to a Virginia criminal statute which prohibited loitering on bridges, Va. Code § 46.2-930. Specifically, the statute provides that "Pedestrians shall not loiter on any bridge on which the Commonwealth Transportation Commissioner has posted signs prohibiting such action. Any person violating the provisions of this section shall be guilty of a traffic infraction." The Court reasoned that demonstrators could not have known that they were loiterers under the statute: "No reasonable person would know that protesting and loitering were one and the same activity and that an anti-loitering statute would attach criminal sanctions to the classic political expression undertaken by the Lytles. Therefore, Virginia Code § 46.2-930 cannot have been constitutionally applied to the plaintiffs."

Inmates can't agree to watch pro wrestling at jail, "smackdown" of their own ensues

Judge Wilson granted summary judgment in this opinion against the inmate who claimed that the guards knew he was going to get beat up the next time he tried to watch pro wrestling at the jail.

Judge Wilson grants summary judgment on claim of race-based refusal to accept an out-of-state check

In this opinion, Judge Wilson granted summary judgment for the office supply vendor Staples on plaintiff's claim that the store refused to accept his check drawn on a Maryland bank because of his race.

Judge Jones remits prison guard's verdict against inmate from $2 million to $250,000

In this opinion, Judge Jones of the W.D. Va. reduced a jury's verdict of $2 million on the counterclaim of a prison guard against an inmate who stabbed him seven times, since there was no evidence of mental distress, permanent injury, lost wages or medical bills.

The plant that gave Galax its name

This article describes over-harvesting of galax, ramps, and ginseng in Virginia and the rest of the Southern Appalachians.

High-tech budget whacking

This article describes the Virginia governor's expectations for budget savings through consolidated IT spending:

"In Virginia, Democratic Gov. Mark Warner is using his personal knowledge as a former telecommunications executive to combine scores of agencies and technology divisions scattered across state government into a single Virginia Information Technologies Agency. Expected net savings: $110 million of the $902 million Virginia spends on information technology each year.

``Having been in the high-tech field in the private sector, I knew where there were areas for great savings,'' Warner recently told And he's trying to spread the reorganization gospel, telling new governors from across the country:

``You're going to have to make the cuts anyway; you're going to have to make the hard choices anyway. Use this as an opportunity not just to balance your budget, but use this as an opportunity to take on some of these issues that you know in good times there won't be the political will to do.''

"Angels of Evidence"

This article describes a unique forensic nursing program in the Tidewater.

What happens to the client when the lawyer's license is suspended?

That's the question posed by this article about the clients of Virginia lawyers and which concludes that "Revoked law licenses leave clients in limbo."

"Bicyclists don't steal TVs"

So notes one biking enthusiast, quoted in this editorial applauding the VDOT policy change to be more biker friendly.

Black enrollment doubles at Old Dominion University

This article attempts to explain how it is that while minority enrollment declined at U.Va. and four other schools, it has doubled at ODU in Norfolk, without considering race in the admissions process.

"Gerrymandering takes the politics out of elections"

So says the Richmond Times in this editorial, commenting on how redistricting kept Republicans out and they have now turned the tables.

Cost of drunk driving goes up in Chesterfield County

By local ordinance, Chesterfield County is trying to recover from drunk drivers the public money spent on their account, as reported here.

Easter Bunny's secrets revealed in Bluefield

A group of kids in Bluefield told the facts reported here on the Easter Bunny. If the commentators got it wrong, presumably the Easter Bunny is a public figure, and the kids' First Amendment rights will protect them.

Lawyer, hospital head make regional "Leaders in Christian Service" list

Milligan College has announced its list of "Leaders in Christian Service," including attorney Frank Anderson of the Anderson Fugate & Givens firm in Johnson City and Dennis Vonderfecht of Mountain States Health Alliance in Johnson City, as reported here.

Tennessee county's "ridge law" debated

Alternative energy is the villain, according to the woman who's arguing against a change in the "ridge law" in the Mountain City area, as reported in this article, which says "A North Carolina woman is leading an effort to convince Johnson County commissioners to vote down a change in the county’s “ridge law,” one that she believes opens the door to renewed efforts to place power-generating wind turbines atop Stone Mountain."

Sunday, April 13, 2003

Southwest Virginia law firm websites (or web pages)

Here are at least some of the law firms in the Big Stone Gap and Abingdon divisions of the W.D. Va. with websites or web pages:

Penn Stuart, Abingdon and Bristol
Wolfe Williams & Rutherford, Norton and Abingdon
Street, Street, Street, Scott & Bowman, Grundy
Dudley Galumbeck Necessary & Dennis, Tazewell
Elliott Lawson & Pomrenke, Bristol
Jessee Read & Ely, Abingdon
Ward Bishop & Rasnic, Bristol
Jones, King & Downs, Bristol
Copeland & Bieger, PC, Abingdon
Yeary & Associates, Abingdon
William Bradshaw, Big Stone Gap
Chip Burkholder, Bristol
Henry Keuling-Stout, Big Stone Gap
John L. Moss, Tazewell
Robert A. Vinyard, Abingdon
Brewster Morhous et al. , Tazewell
Gwyn & Tate, Marion

On the other side of Black Mountain

The Associated Press has this report titled "Kentucky coal towns face tough times as populations fall."

Virginia's new "power couple" excites editorialists

On the recent appointment of the wife of U.S. Senator George Allen to the board of directors of Dominion Resources, the Virginian-Pilot wrote this and Jeff Schapiro wrote this.

Terrorist threats to Weber City

Media General columnist Marcia Mercer wrote this piece for the Sunday papers on the issues a town police chief in Scott County has concerning terrorism, which include proximity to the Eastman plant in Kingsport and the Holston armaments plant.

Commentary on Virginia's tax reformers

Last week, the WaPo had this rollicking account of the coming showdown between Governor Warner and Speaker Howell over tax reform in the Commonwealth, which includes these characterizations:

"Republican moderates (and even some staunch conservatives such as Howell) know that such an overhaul -- which would end the convoluted reimbursements the state pays to counties for car-tax relief -- is long overdue and would generate more revenue over time than the current system."

"Howell and Warner are playing a bluffing game, each side nudging the other to act first on a tax restructuring plan for the 2004 General Assembly session."

"Warner, as is his custom, has been all over the map. As a candidate in 2001, he promised to make tax restructuring a top priority. Then he punted on it in 2002, when he had the more pressing challenge of a $6 billion budget shortfall to contend with -- and after it became clear that the General Assembly was in no mood to talk taxes.

This year, Warner has sent conflicting signals about what direction he wants to head in, saying soon after the assembly's adjournment that he would make a vigorous case for a new tax code that plows significant new sums into education.

Almost immediately, Warner sounded cool to his own idea, offering only generalities about his timetable and making it clear that he thought the General Assembly should provide the impetus for any tax reform. That will never happen, because the one paltry recommendation produced by a lengthy legislative study on the subject was the repeal of Virginia's estate tax, which Warner vetoed."

"In other words, it's not clear that Warner will stick his neck out anytime soon on an initiative that he promised voters two years ago to deliver on."

"When it comes to taxes, the problem may not be Warner's timidity or Howell's abiding aversion to taxes but rather their visions of government's role that keeps them poles apart. Warner sees a Virginia where government can, and should, do more; Howell sees a state fairly awash in resources that merely need more prudent management."

Tobacco money as "the wages of sin"

This article from Utah describes how tobacco money is addictive to state governments, while here the New York Post asks "Are cash-strapped states addicted to tobacco?" New York City stands to lose $100 million if Philip Morris stops making expected payments, as reported here. Meanwhile, the NYT reports here that tobacco bonds are becoming so heavily discounted they might be worth the risk (if Philip Morris can pay).

2005 gubernatorial candidates upcoming fundaisers feature Giuliani and Bruce Hornsby

This article on fundraising by Attorney General Jerry Kilgore and Lieutenant Governor Tim Kaine has U.Va. professor Larry Sabato saying ""That's a lot of money at this stage of the campaign, and we're not even halfway through (Gov. Mark R.) Warner's term . . . .One can only imagine what it's going to be like by 2005." Bruce Hornsby might respond, no point in imagining, "that's just the way it is, some things will never change."

Virginia No. 8 on U.S. Chamber's best places to be sued list

This article says that Maryland is at a competitive disadvantage against its neighbors Delaware and Virginia, which were first and eighth on the U.S. Chamber of Commerce survey lists of business-friendly states. The author notes that "Virginia has a contributory negligence standard, like Maryland, but it imposes a $350,000 cap on punitive damages. Virginia also does not allow class-action suits in state court, something that is noticed by businesses like Phillip Morris Companies Inc., now known as Altria Group Inc., which recently relocated to Richmond. 'It (Virginia) is not a plaintiff-friendly state,'" said a Virginia chamber spokesman.

Roanoke lawsuit brings memories of destruction of black neighborhoods

Litigation in Roanoke Circuit Court concerning the housing authority's treatment of the city property of some African-American residents "is the most recent reminder of urban renewal, in which localities nationwide used eminent domain to take black property cheaply, wiping out years of black residents' cultural and social ties," according to this report. Dan Brown of Woods Rogers represents the housing authority.

Free speech center in Charlottesville denounces this year's "muzzlers"

As described here, "U.S. Attorney General John Ashcroft, a Tennessee art agency that banned nude figures, an Arkansas school board that restricted library access to "Harry Potter" novels and the U.S. Congress have been named some of the country's top stiflers of free speech . . . Recipients also include the North Carolina House of Representatives for trying to cut funding to a university program that assigned reading on Islam; Berkeley, Calif., Mayor Tom Bates for stealing 1,000 copies of a university paper that endorsed his opponent; and an Indiana high school that temporarily yanked a student's diploma after her graduation speech." This notices of dishonor were compiled by the Thomas Jefferson Center for the Protection of Free Expression in Charlottesville and its director, former U.Va. president Robert O'Neil.

East Tennessee lawmakers target road rage

This article describes efforts by East Tennessee lawmakers to pass a bill against road rage in Tennessee, and notes that a similar law exists in Virginia (apparently the reference is to Va. Code § 46.2-868.1). The Tennessee bill would make it an offense for a motorist to do a variety of things ''with the intent to harass, intimidate, injure or obstruct another person.''