Friday, August 01, 2003

More on Fourth Circuit ruling in child porn case where defendant was hacked

Via How Appealing, c|net has this article on the Fourth Circuit's ruling in the case of the child pornography defendant discovered and turned in by the Turkish hacker.

Retiring legislator eyes Western Virginia circuit court judgeship

The Roanoke Times reports here that retiring Senator Bo Trumbo is seeking the judgeship left vacant by the untimely death of Judge Duncan Byrd.

Struck employer as "state actor" for section 1983 claims of arrested picketers

In Rodriguez v. Smithfield Packing Co., Inc., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Motz and Senior Judge Beezer of the Ninth Circuit, held that (1) release-dismissal agreements were enforceable and were a valid defense to the plaintiffs' constitutional claims against law enforcement officials, and (2) the employer, Smithfield Packing, was not liable under section 1983 municipal liability standards for the alleged bad acts of the law enforcement officers it had hired to police a strike.

This last point seems kind of garbled to me, they say Smithfield could be considered a state actor because it had these police officers there, but then that "Smithfield Packing could not have delegated any policymaking authority over arrests to Priest, because the company had no authority over county law enforcement policies that it could have delegated." Why not just say that Smithfield was not a state actor and could not be sued at all under section 1983?

One drug conspirator drives through Virginia, the rest can be tried in Virginia

In U.S. v. Mitchell, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer and Shedd and District Judge Wooten affirmed the defendant's conviction over his objection to venue, among other things, of which the Court said that the "acts of Mitchell and his co-conspirators in the Eastern District of Virginia were essential in fur-thering the drug conspiracy and were sufficient to establish venue on the drug conspiracy count. Mitchell engaged in a drug conspiracy that involved the sale of drugs in Washington, D.C., the transportation of those drugs through Virginia, and the distribution of the drugs in North Carolina. The transportation of the drugs through Virginia was an act in furtherance of the conspiracy and was essential to the distribution of those drugs in North Carolina."

ERISA does not preempt employer's suit against health plan administrator

In Sonoco Products Co. v. Physicians Health Plan, Inc., the Fourth Circuit in an opinion by Judge King joined by Judge Shedd and District Judge Bullock held that the breach of contract claim of an employer against its health plan administrator were not preempted by ERISA and therefore the trial court erred in denying the employer's motion to remand the case to state court.

Judge King's opinion says the district court was looking in the wrong direction on the removal question: "In denying Sonoco's motion to remand, the district court concluded that the breach of contract claims in the Complaint 'relate[ ] to ERISA,' and that they were thus 'preempted' pursuant to § 514. Order at 2. On the basis of this conclusion, the court justified its denial of the motion to remand and its assertion of federal jurisdiction over Sonoco's state law claims. Contrary to this reasoning, however, conflict preemption under § 514 does not provide a basis for federal jurisdiction. Rather, it provides a defense to a state law claim that may be asserted in state court. Instead of focusing on § 514 conflict pre-emption, the court should have assessed whether Sonoco's state law claims were, as PHP asserted, completely preempted by ERISA's § 502(a). In other words, the court should have inquired into whether the breach of contract claims 'fit within the scope of ERISA's § 502(a) civil enforcement provision," and as such, whether they were properly 'converted into federal claims.' Darcangelo, 292 F.3d at 187."

The decision goes on to conclude "that Sonoco lacks standing to pursue its breach of contract claims under § 502(a)," and therefore the remedies statute did not provide a basis for removal and the case should have been remanded.

Measure of damages for anticipatory breach of natural gas sales contract

Yesterday, the Fourth Circuit in Hess Energy, Inc. v. Lightning Oil Co., Ltd., in an opinion by Judge Niemeyer joined by Judges Traxler and Wilkinson, held that the proper measure under Virginia's UCC for the anticipatory breach of a contract to sell natural gas, was the difference between the contract price and the time when the gas was to be delivered, rather than the difference between the contract price and the time when the buyer learned of the breach, applying Va. Code 8.2-713 and citing, among other things, Corbin on Contracts, which says in part "When the seller of goods has promised delivery at a future time and prior thereto repudiates his contract, the buyer is not required to go into the market at once and make another
contract for future delivery . . . ."

Thursday, July 31, 2003

Fourth Circuit says Lentz must stay in jail

As reported here in the Washington Post, a split panel of the Fourth Circuit decided that acquitted kidnapping defendant Jay Lentz must remain in custody pending the government's appeal of the trial court's decision to overturn the jury's finding of his guilt. The majority included Judges Traxler and King, while the dissenter was Judge Michael.

How much "serious" crime is there in Southwest Virginia?

The Kingsport paper summarizes here Virginia crime statistics showing an increase in "serious" crimes in some Southwest Virginia counties.

New law requires public housing residents to perform community service

This Kingsport Times-News article describes a new federal law requirement for some public housing residents to perform community service.

Plaintiff from East Tennessee included in Patriot Act challenge filed by ETSU

As reported here in the Elizabethton paper, one of the plaintiffs in the constitutional challenge to the USA Patriot Act filed in Michigan this week by the American Civil Liberties Union is "Knoxville-based Bridge Refugee and Sponsorship Services -- a religiously ecumenical, nonprofit organization that settles refugees in Tennessee."

Western Virginia legislators talk tax reform

From the Lynchburg paper, this collection of comments from some Western Virginia legislators, including Delegates Preston Bryant, Kathy Byron, and Ben Cline, and Senators Charles Hawkins and Steve Newman, is well worth-reading (or so I thought).

I have posted many articles about Virginia tax reform on this blog, without really saying why it is of interest to me. It is an interesting topic in itself, as it involves so many aspects of law and society, but it is particularly interesting as a measure of the mix between politics and the public good. No one disagrees that tax reform is necessary, yet there will be winners and losers as the result of any changes. How can the legislators, even with the best of intentions, resolve these conflicts (and what are the best intentions)?

AG Kilgore favors judicial disclosure of reasons for overturning jury's recommended sentence

Last week, Attorney General Jerry Kilgore agreed with those who have been advocating a requirement that Virginia judges explain themselves when overturning the recommended sentences from juries in criminal cases, as reported here in the Danville paper. The Attorney General said "he understands the frustration the slain deputy’s family, friends and colleagues are facing with Circuit Judge William N. Alexander II’s decision April 24 to overturn the jury’s recommended death sentence for Roy Douglas Inge Jr."

More on Percy Walton

Tuesday's Danville paper has this report on the conflicting evidence regarding the mental health of death row inmate Percy Walton, whose case is now before Chief Judge Samuel Wilson of the W.D. Va., who must decide whether Walton is unfit to receive the death penalty.

W.D. Va. begins creating awareness for electronic filing in 2004

The website of the U.S. District Court for the Western District of Virginia has this online brochure about how electronic filing will work when it becomes a reality here in 2004.

Why don't more people vote in West Virginia?

The Bluefield paper says here that WV is 44th in the nation in voter turnout, and Secretary of State vows to do something about it.

Interesting place to find a link to this blog

My earlier post on the Virginia Court of Appeals' decision regarding the use of polygraph evidence in probation hearings made the news section of the website

Wednesday, July 30, 2003

Sticking the employer/defendant with e-mail retrieval costs

Electronic discovery is trendy, but costly, and something of a needle in a haystack approach - which makes the recent district court ruling that the employer/defendant in a sex discrimination case must pay to restore e-mail backups probably a bad precedent, as described here in this ZDNet article and earlier in this NY Times article (registration required), which begins with these words:

"A federal judge ordered UBS yesterday to pay the majority of the costs involved in restoring e-mail evidence sought by a former employee who is accusing the bank of sex discrimination.

The decision, from Judge Shira A. Scheindlin of Federal District Court in Manhattan, said that as long as plaintiffs could prove the relevance of the e-mail to their case and that the costs involved in restoring them were reasonable, banks could be obliged not only to provide the messages but also assume the expense.

She then ordered UBS to produce and pay for a limited portion of the e-mail messages requested by the plaintiff, Laura Zubulake, a former equities trader.

The estimated cost is $273,650, according to UBS, with $165,954 going to the restoration process. UBS is required to pay 75 percent, while Ms. Zubulake would pay for the rest.

The decision was seen as having wide legal significance, especially in arbitration cases, where individual investors are seeking damages from investment banks that they say provided fraudulent research. Lawyers have sought e-mail evidence from banks, which have generally refused to comply."

Judge Lee rules man he acquitted can go free pending appeal - in 2 days

As reported here in the Richmond Times-Dispatch, here by the AP, and here in the Washington Post, Judge Gerald Bruce Lee of the E.D. Va. has overruled the government's objections to the release of acquitted kidnapping defendant Paul Lentz while the government appeals the Court's decision to overturn the jury's verdict, but allowed the government an opportunity to seek emergency relief from the Fourth Circuit. Meanwhile, Lentz's counsel are claiming that the jury verdict was based on improper evidence which mysteriously made it into the jury room.

Unionized workers for Verizon in Norton could go on strike this weekend

The Kingsport paper reports here that the national contract between the Communications Workers of America and Verizon for call center employees expires at midnight on Saturday night.

Looking for "the biggest hog at the trough" in King securities case

Today's Bristol paper reports here that Magistrate Judge Inman in the King Pharmaceuticals securities cases filed in the E.D. Tenn. is looking for the "the biggest hog at the trough" to be the lead plaintiff.

Virginia Supreme Court takes issue of medical bills discharged in bankruptcy

Having resolved the issue of medical bill write-offs in recent years, the Virginia Supreme Court has agreed to hear an appeal in the case of Barkley v. Wallace, where the issue is whether "The trial court erred in precluding BARKLEY from presenting to the trial jury the total amount of her related medical bills incurred as a result of the motor vehicle accident with GEORGE WALLACE (WALLACE), on the grounds that said medical bills and expenses had been discharged in bankruptcy."

Yesterday's Fourth Circuit opinions

In C.F. Trust, Inc. v. First Flight Limited Partnership, the Fourth Circuit affirmed the district court's decision, based on the Virginia Supreme Court's answers to certified questions about whether and when Virginia law would allow "outsider reverse veil piercing against a limited partnership."

In Wachovia Bank N.A. v. Federal Reserve Bank of Richmond, the Fourth Circuit upheld judgment against the Federal Reserve for honoring a stolen and altered check from Wal-Mart for over $500,000.

In R. v. Fairfax County School Board, the Fourth Circuit in an opinion by Judge Williams joined by Chief Judge Wilkins and Judge Gregory revered Judge Brinkema of the E.D. Va. on the issue of whether the Individuals with Disabilities Education Act (IDEA) requires specific notice that "parents in Virginia have a two-year period in which to request a due process hearing" and a statement of when that period starts to run.

In U.S. v. Jarrett, the Fourth Circuit in an opinion by Judge Motz joined by Judge Wilkinson and Senior Judge Beezer from the Ninth Circuit affirmed the child pornography conviction where the government was tipped off to the defendant's conduct by an anonymous computer hacker from Istanbul, Turkey, who hacked into the defendant's computer.

Tuesday, July 29, 2003

New sign of the times - website for constitutional officer candidate

My politically active friends over the years have told me that the old-fashioned measure of public opinion leading up to a local election is the relative number of signs you see along country roads out in the county. (I knew I was lost once when I was looking for somebody's house outside of Pound in Wise County and the signs along the road switched to the Dickenson County candidates.)

But now I see that Chad Dotson has a stylish campaign website - maybe he's counting the hits as a measure of interest. I'm willing to declare here that my friend Chad can tell anyone in Wise County that I am 100% for him or 100% against him, whichever he thinks is best.

Split panel affirms murder conviction despite failure to instruct jury on "heat of passion"

In Rhodes v. Com., the Court of Appeals in an opinion by Judge Annunziata joined by Senior Judge Coleman held that there was no error in the trial court's failure to give the "heat of passion" instruction proffered by the defendant. Judge Benton in dissent complained (and not in a footnote) that the majority "disposes of this case on an issue that was neither raised at trial nor briefed by the Commonwealth." (Ooh, I hate when that happens.)

Polygraph evidence inadmissible in probation hearing

In White v. Com., the Virginia Court of Appeals in an opinion by Judge Benton joined by Judge Clements and Senior Judge Hodges held that evidence that a probationer failed a polygraph test is inadmissible in a hearing on probation revocation, and the trial court's consideration of such evidence was apparently not harmless error, even though the probationer was a sex offender and the trial court had resolved not "to gamble with with this man and young children."

Judge Michael sics a footnote on counsel

The first footnote in Judge Michael's opinion in John M. Floyd & Assoc. v. First Bank says this:

"The court pauses to note a glorious instance of irony in the memorandum encompassing defendant’s objections. In counsel’s haste to cast stones at the magistrate judge’s erratum, he forgets to do so before leaving the confines of his own proverbial glass house. The court politely reminds counsel that use of “[sic]” is to be reserved for egregious gaffes and not for minor lapses that may be adjusted without violent damage to the text ascribed to the author."

Also, the side which "sicced" the magistrate judge's report was unsuccessful in the effort to have it overturned.

Just say $%@* like the Sarge on Beetle Bailey

This post from Tim Sandefur brings to mind my very first appellate brief-writing project, in which the facts were these:

"During this meeting, the chief executive officer repeatedly asked for Cooper's resignation. Toward the end of the meeting, the chief executive officer "got on the subject" of union organizing activities that had occurred among company employees. He stated that he did not think the employees would "go for" union representation and Cooper responded that if they did not it was because they were afraid of losing their jobs. The chief executive officer told *704 Cooper that if he was to keep his job, he was expected to do what he was told. Cooper responded, "Well I don't know who you are or where you come from but you're full of shit." Cooper further stated that he did not believe anything told to him by company officials. The chief executive officer fired Cooper for making these remarks." Kennedy's Piggly-Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992).

The appeals court ruled that using the "sh--" word was not "misconduct" severe enough to disqualify Mr. Cooper from receiving unemployment benefits. In researching the employer's brief, I plugged all the bad words I knew into Westlaw, looking for similar unemployment cases. What really bummed me about the case was that the VEC had decided for the employer, and straight from law school I was sure that appeals court would agree that it should defer to the administrative agency's expertise, particularly since the circuit court's opinion was unusual - and it was unusual, written in rhyming verse and sent out on April 1.

Computerized scheduling for split families

The Washington Post has this article on yet another miracle of the modern age, a web-based program that will help split families keep track of who goes where for Christmas, called

More on the case of the unruly footnote

Ethicalesq's contribution is here in the discussion of the bar discipline imposed on an Indiana lawyer for writing a nasty footnote in an appellate brief.

Not too long ago, I filed a motion for reconsideration in a state court case, and I told the judge that I had once seen Justice Stevens address the Seventh Circuit judicial conference on C-SPAN and his remarks included some humorous discussion of the function of the petition for rehearing, that these were often filed and almost never granted, but they served the salutary purpose of allowing the losing lawyers to blow off steam, which was a matter of real benefit to the safety and welfare of the public at large - but having said all that, I insisted, my motion was not that kind at all, but a really serious motion I hoped he would consider carefully.

Illinois justices take law into their own hands to order pay raise for themselves

This New York Times story (registration required) begins with the following:

"The justices of the Illinois Supreme Court have decided that all the state's judges deserve cost-of-living raises, themselves included. So they have ordered the government to pay them more.

But others in this deficit-ridden state disagree, including the governor and the comptroller, who writes the checks. That has set off a storm of legal maneuvers that threaten to leave the comptroller in contempt of court, and some of the state's best-paid workers — judges — suing the governor in their own courts."

Wrongful discharge based on retaliation for in-house complaints not preempted by ERISA

In King v. Marriott International Inc., the Fourth Circuit in an opinion by Judge Luttig joined by Judges Wilkinson and Shedd concluded that the removal of plaintiff's wrongful discharge claim was improper, where she claimed that she was discharged "for complaining about and for refusing to violate" ERISA, somewhat narrowly construing the scope of the anti-retaliation provisions of the federal statute.

There is some illogic to being able to remove a case, because of the connection between the claims an ERISA plan, but then have it dismissed, because of the lack of a connection between the claims and the ERISA plan, which is more or less what happened in the district court.

No error in refusing to appoint psychiatrist for murder defendant

Yesterday, in Page v. Lee, the Fourth Circuit in an opinion by Judge Luttig, joined by Judge Williams, with Judge Gregory concurring in the result, affirmed the conviction and death sentence of a North Carolina man who killed a police officer, concluding that he was not wrongfully denied a court-appointed forensic psychiatrist. Today, the AP has this story on the case.

How scandalous is Richmond city government

This collection of the foibles and failings of Richmond city council members, past and present, is quite remarkable.

Front Royal finally votes on Wal-Mart

In Southwest Virginia, Abingdon-area residents have taken note of the zoning dispute in Front Royal regarding development of a new Wal-Mart - where the resolution had been stalled for lack of quorum. As the Richmond Times-Dispatch reports here, one of those who had previously disqualified himself, re-qualified himself, so there was a quorum of the Front Royal town council to vote for the rezoning sought by Wal-Mart.

In Abingdon, anti-Wal-Mart activists are urging the Town Council to make sure that changes to the zoning ordinance are in place to keep Wal-Mart out of town, before the developers can claim they have vested rights. One issue is the odd and dangerous configuration of the interchange at the nearby exit of the Interstate - I have often wondered, what were the roadbuilders thinking when they build it as it is?

Psychiatrist reassigned after giving IQ test to death row inmate

According to this article in the Roanoke paper, a state-employed psychiatrist is claiming she was reassigned after she gave an IQ test to a Virginia inmate facing execution, because the Commonwealth did not like her findings.

What does it take to pull over 19 Hell's Angels in interstate in SW VA?

The Roanoke Times has this story on one trooper's efforts to pull over some speeding bikers on Interstate 81.

Monday, July 28, 2003

Why not WiFi

Sunday's Washington Post had this feature article on how WiFi is still too insecure, in ways that could be dangerous - wireline connections are (almost inevitably?) more secure.

Litigating the damages cap when state and federal employment claims joined

In Hall v. Consolidated Freightways Corp., the Sixth Circuit, in a opinion by Judge Clay joined by Judge Glen Williams of the W.D. Va., with Judge Daughtrey concurring, reinstated the jury's punitive damage award against the defendant employer notwithstanding the statutory cap of 42 U.S.C. 1981a because the punitive damages in excess of the cap were also recoverable on the plaintiff's state law employment discrimination claim (applying Ohio law).

So, the difference in that case between the dollar value of the state and federal law remedies was $500,000.

Judge Williams went to Cincinnati this summer to sit by designation on the Sixth Circuit but I don't know whether he got to take in any baseball games. I'd expect the judge will go to baseball games as long as he is able. On the subject of Cincinnati baseball, I am inspired by the many accounts this weekend on the induction to the Baseball Hall of Fame on Sunday of Hal McCoy, who continues to write about the Reds for the Dayton paper despite nearly losing his sight, as described here, here, here, here, here, and finally here (from McCoy's home paper in Dayton).

Bristol lawyers refuse to take more cases from the Commonwealth (of Massachusetts)

Jurist's Paper Chase links to this article about lawyers in Bristol County, Massachusetts and other jurisdictions there who are refusing to take new court-appointed cases until they are paid for last year's cases.

Governor Warner's Preventing Crime in Virginia's Minority Communities project

The Daily Press has this report on an initiative by the Governor to reduce crime in Virginia's minority communities.

Sunday, July 27, 2003

Lawyer discipline and free speech

Marcia Oddi's Indiana Law blog has this interesting post regarding the case of the lawyer in Indiana who was subjected to bar discipline (a 30-day suspension, later reduced to a reprimand) because of a footnote he wrote in a brief, describing to the state's highest court just how lousy he thought was the opinion of the intermediate court of appeals.

I expect ethicalesq will weigh in on this matter. In Virginia, the ethics rules prohibit a lawyer from a public communication that "states or implies that the outcome of a particular legal matter was not or will not be related to its facts or merits." Rule 7.1(a)(2). This rule doesn't prohibit writing a brief that says the lower court got it wrong, but I guess it would be pretty bad to say the lower court wasn't even trying, which I guess is the Indiana Supreme Court concluded from the lawyer's footnoted remarks.

As noted in the margin (sometimes, when it works), I've been re-reading a book called The American Inquisition, and just finished a chapter on the legal travails of a group of lawyers who represented the leadership of the Communist Part of the United States in a famous trial. The trial judge found them all in contempt for the way they defended their clients, and they litigated the contempt sanctions and their bar status for years thereafter, including several appeals to the United States Supreme Court. The author's point was not so much that the lawyers did not deserve to be punished, but that their punishment was arbitrary and excessive. (And, they did say some bizarre and offensive things, from what is quoted in the book.)

More electoral board members mad at Virginia Attorney General

The Washington Post has this article on the criticism of electoral board members of the Attorney General's opinion limiting their political activity.

As discussed here previously, by law, the majority of every electoral board in Virginia is of the same party as the Governor (who is not of the same party as the Attorney General).

Years ago, when the governor's office changed hands from the Republican John Dalton to the Democrat Charles Robb in 1982, the next year in accordance with Virginia, the partisan makeup of all the electoral boards changed, and a number of the boards more or less fired their registrars, and replaced them with Democrats. This had been done before, I'm told, in the time of the Republican governors as well. But, in the 1980s, a group of the ousted Republican registrars filed suit, claiming that they could not be denied reappointment on account of their political affiliation, and the Fourth Circuit agreed, in the case of McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987), in which the Court also held that since this was new law, the electoral board members individually would be entitled to qualified immunity. One of those plaintiffs was Willie Mae Kilgore, the mother of Jerry Kilgore and Terry Kilgore, and following her reinstatement by the courts, she is still to this day (last I heard) the registrar of voters for Scott County. The lawyer who argued the case on appeal for the registrars against the electoral boards was William Hurd, who is now the Solicitor General for the Commonwealth.

Maybe Trible not running is no surprise?

This column by Jeff Schapiro makes former Senator Paul Trible look like he chose wisely in his decision on Friday to not run for lieutenant governor in 2005.

Who would go to an Appalachian League baseball game?

"Eight guys from Maine" came to Bluefield on their tour of minor league ballparks, and sang the national anthem, as reported here.

Government employers in Western Virginia monitoring employees computer use

The Roanoke Times has this article on the efforts of local government in Western Virginia to monitor the computer use of their employees.

In the Urofsky case, the en banc Fourth Circuit held in a 8-4 decision that "that the regulation of state employees' access to sexually explicit material, in their capacity as employees, on computers owned or leased by the state is consistent with the First
Amendment," a holding which would apply equally to local government employees.

Republican delegates challenge governor's authority to name interim judges

The Washington Post reports here and the AP reports here that Republicans in the House of Delegates are challenging the authority of Governor Mark Warner to appoint judges to fill vacancies until the next session of the General Assembly - including, particularly, a circuit court judgeship in Alexandria.

The Post article quotes Del. Terry Kilgore as saying, "If we don't step up and exercise our rights, we'll be sending the message across the state that if you were appointed by a Democrat, just wait until we are out of town and retire and we won't do anything."

The story seems a bit misleading - it is no news that judges appointed on an interim basis have to sweat out the decisions made in the next term of the General Assembly. It is my recollection that Justice Kinser, for example, was initially appointed by Governor Allen, and then she had to pass muster in the next legislative session. There is nothing controversial about legislators declaring that they will exercise their constitutional prerogatives.

It was pleasure to meet Judge Roger Gregory of the Fourth Circuit when he came to Abingdon and spoke sometime last year. Judge Gregory was nominated originally by President Clinton, and then renominated by President Bush, and so became one of the few trouble-free nominations to the federal court of appeals positions since President Bush took office. Judge Gregory is an outstanding individual, the kind of lawyer who sets an example for others (like myself) to admire and try to follow.

I don't know the man in Alexandria who is being considered for the judgeship there. There are many lawyers in Alexandria. I would hope that the Republicans in the General Assembly are as able to consider the possibility, as the White House apparently did, that the endorsement of the leader of the opposition does not disqualify an well-qualified candidate for a judgeship.

On the ceremonial swearing-in of Judge Greer of the E.D. Tenn.

The Kingsport Times has this story, the Greeneville Sun has this story, the Morristown paper has this story, and the AP has this story on the ceremonies for the investiture of Judge Ronnie Greer of the E.D. Tenn., who was administered his oath by U.S. Senator Lamar Alexander in Greeneville on Friday afternoon.