Friday, September 12, 2003

I'm taking off a few days, back next week.

Wednesday, September 10, 2003

Virginia's Fireman's rule does not apply to mine safety inspector

In Lockhart v. Coastal Coal Company, LLC, Judge Sargent of the W.D. Va. recommended denial of defendant's motion for summary judgment, concluding that the "Fireman's Rule" under Virginia law would not extend to protect the defendant from liability to a federal mine safety inspector who was struck by a falling rock in defendant's coal mine.

I can believe that a mine inspector is not quite the same as a fireman or police officer, but then again, what is the level of risk that a mine inspector assumes going into the mines. I would imagine that mine inspectors know quite a lot in general and might have very specific knowledge about how dangerous mines are. If the guy is there to see about the bad roof, does he assume the risk that the roof will hurt him? Then again, the inspector might say that the roof looked pretty good the last time he was in there.

Loudoun case to decide law firm liability for death caused by employee's driving

This article discusses the pending case to be tried soon in Loudoun County to decide the liability of a major law firm for a fatal automobile accident allegedly caused by a lawyer driving down the road talking on a cell phone.

For more articles on the issues of the Yoon v. Wagner case, see my post of July 1.

Tech also denies rejecting applicant because of immigration status

Like George Mason, Virginia Tech denies that it has refused admission based on immigration status to anyone, much less the so-far anonymous plaintiffs in the lawsuit brought earlier this month, as reported here in the Tech student paper.

Tennessee home schoolers repeat as mock trial champions

This article describes the repeat victory of a mock trial team of homeschoolers from Tennessee.

Tuesday, September 09, 2003

Still more on the car tax

As reported here, the Commonwealth's bond rating may drop, according to Moody's, which blames in part the car tax repeal/local government subsidy scheme from the prior administration.

University settles again with professor-litigant

This Richmond Times story explains how it is that the Virginia State University had to settle a second time with the professor who won $1.64 million in damages, fees, and costs the first go round.

JLARC staff report on spending for computers in schools not accepted by legislators

The AP has this story and the Richmond paper has this story on a staff report by the Joint Legislative Audit and Review Commission that says the state government is not spending enough on computers in schools, and the response of legislators who says it's not so.

How to be an insurance defense lawyer

The Insurance Defense blog has this post about an IADC publication, the "Practical Guide for Insurance Defense Lawyers."

Sanctions for violating Rule 412

Rule 412 of the Federal Rules of Evidence limits the use of evidence about sexual behavior. This post from Out-of-the-Box Lawyer discusses a Ninth Circuit opinion upholding an award of sanctions under the trial court's "inherent power" and 28 U.S.C. § 1927 for both attorneys' fees and emotional distress against the defendant's attorneys (I think) for introducing evidence about the plaintiff in violation of Rule 412 - but the opinion also holds that the misuse of the Rule 412 evidence was not grounds for a mistrial.

Righting the Ship

If I hadn't come back to Southwest Virginia, this might be the South-Central Pennsylvania blog, where I went to high school and where I worked one summer for the Barley Snyder firm, which grown by more than 100% since that brief time when I was there. Anyhow, a number of my high school classmates (including my friend Horning whose company made me undo the unauthorized link to its website and who made something of himself in spite of knowing people like me) went to Shippensburg University, the subject of this interesting federal court opinion striking down the student code of conduct as in violation of the First Amendment.

82% rate excused rate for venire members?

This NY Times article (registration required) says that 82% of the jury pool members who show up for jury duty do not get on a jury, in statistics from the courts of New York State.

This seems high to me, but maybe it's not. I thought that in federal court locally, for the civil cases I've seen, they call maybe 20 people, stick 13 in the box, strike 3-4 for cause, give each side three peremptories, and try the case with 7. That's a rate of 65%, by the reckoning of the Times article, which says that "the rate in federal courts across the country is about 76 percent."

Next thing - discovery of data recorders in autos

The Washington Post has this article on the data possibilities from "black boxes" in automobiles, and who might want that data - parents, police - and why not lawyers in civil cases?

Guardian decides to remove life support

Via Lawyers' Weekly, the Lynchburg paper has this account of the decision of the guardian to remove life support, where the family members could not agree on what to do, in the case of young man left in a coma because of an auto accident.

On restructuring the EEOC

Here's an article from the Washington Post on yet another restructuring of the operations of the Equal Employment Opportunity Commission (EEOC), which does essentially nothing with a great many of the charges of discrimination filed with it by individuals (as opposed to classes of individuals).

More on the alien admissions lawsuit

A George Mason University paper had this article on the lawsuit against GMU and others over the admission of illegal aliens. The article says the admissions dean at George Mason denies that he has had occasion to deny admission to any undocumented aliens.

Monday, September 08, 2003

What to eat if those bar results turn out wrong

Not that I think there is anyone who (a) reads this blog and (b) won't pass the July Bar exam, for which the results will soon be announced, but here's a thought on what to eat - General Tso's chicken. It says in this article, "Who Was General Tso And Why Are We Eating His Chicken?" that "As a young man Tso flunked the official court exams three times, a terrible disgrace. He returned home, married and devoted himself to practical studies, like agriculture and geography. He took up silkworm farming and tea farming . . . ." There it is, three rounds with the exams then silkworm farming.

Another town ordinance limiting campaign signs

This article describes the 20-day limit for campaign signs in the Town of Culpeper. The article notes that some candidates, those who had contests for the party nominations, have been sticking up signs since April.

About a week ago, I put up two signs in my yard, the only ones in the neighborhood. One of the signs is for a board of supervisors candidate, who lived next door when my family moved here in 1969. The other is for one of the candidates for Commonwealth's attorney. My wife says it's now time to take the signs down, because everyone else who lives on our cul-de-sac has already seen them plenty of times and no one else comes back where we live. She's probably right.

More on the bad blood story

The Washington Post has this additional story on the woman who died after receiving the wrong type of blood in connection with her bowel resection surgery for Crohn's disease.

Attorney General says he'll refuse to recuse in Newport News reservoir matter

Via Lawyer's Weekly, this article in the Richmond Times-Dispatch says that a Republican state delegate and other opponents of the Newport News reservoir project want Attorney General Jerry Kilgore to recuse himself from the defense of the Commonwealth in the matter because they think he favors the project and won't put up much of a fight on behalf of the state's Marine Resources Commission, which rejected the project a few months ago, a decision that is now being challenged in state court.

On the 5th birthday of Google

The Washington Post's Cynthia Webb has this collection of stories on the birthday of Google.

More on Estrada implications

The nomination of Claude Allen to the U.S. Court of Appeals for the Fourth Circuit is particularly vulnerable, according to this article on the implications of the withdrawal of the Miguel Estrada nomination.

Third time is the charm - Eleventh Circuit flip-flops against qualified immunity

This article tells the decision by a panel of the Eleventh Circuit in Vaughan v. Cox to reject qualified immunity for a police officer defendant in a high-speed chase, after twice ruling against qualified immunity, and that the change is more remarkable since there were no motions or Supreme Court rulings that prompted the change.

How to avoid conflict of interest disclosures

The Washington Post has this article about a county supervisor in Fairfax who did not disclosure his employment with a subsidiary of a company that regularly sought land-use approvals from the County, because (a) the job was as a "consultant" not an employee, and (b) the employer was the subsidiary, not the parent company, and as such did not deal directly with the County.

Shareholder-owned electrics in Virginia profit from deregulation?

According to this AP account, deregulation of electricity in Virginia has been profitable for Dominion Resources.

More on SOLs - this year's seniors must pass or else

The Bluefield paper had this article on the realization among Southwest Virginia's high school seniors hoping to graduate next spring that they must pass the SOLs or else.

Firearms on Virginia campuses

The president of James Madison University is being urged to seek a formal opinion from Attorney General Jerry Kilgore on disparities between the school's policy prohibiting possession of guns and state law, according to this AP report.

The BCRA and you

Today being the day of oral arguments in the case of the Bipartisan Campaign Reform Act, this post has the guide from Howard Bashman on where to find stuff about the case, including this amicus brief stating the views of Virginia and some other states ("BCRA is clumsy. BCRA is unreasonable. BCRA has commanderred state laws, state constitutions and state ballot initiatives upsetting 'the usual constitutional battle of federal and state powers.'"). This article in yesterday's Arizona Republic cites the Virginia and other states' brief as evidence of the strange bedfellows joined in opposition to the BCRA.

Sunday, September 07, 2003

Overbroad e-mail subpoena could lead to liability

Via LawMeme, I have read that the Ninth Circuit in an opinion by Judge Alex Kozinski held in Theofel v. Farey-Jones that the plaintiffs could have a claim under the federal Stored Communications Act, 18 U.S.C. § 2701 et seq., against an attorney who obtained a bunch of their e-mail from their ISP by means of a grossly overbroad subpoena.

Daubert in the Fourth Circuit

This post from Blog 702 talks about "batting" averages on the admissibility of expert witness testimony under the Daubert test in federal courts, and leads to this interesting page with statistics on how the Fourth Circuit has dealt with Daubert cases since 2000 (including 19 of 19 cases affirmed when trial courts excluded expert testimony under Daubert).

No Estrada, so what?

This post from the Legal Theory Blog and this post from the Election Law Blog really, really say a lot about what if anything is the broader significance of the Republicans' inability to push through the nomination of Miguel Estrada to the D.C. Circuit.

Crossed out in Loudoun County

"Five families asserting that Loudoun County school officials violated their free speech rights by removing bricks engraved with Christian crosses from a school walkway cleared an early hurdle in their legal fight when a federal judge ruled that the case should move toward trial," begins this story in the Washington Post. The plaintiffs are represented by the Rutherford Institute. The Rutherford Institute is most famous for its involvement in the case of Paula Corbin Jones v. William Jefferson Clinton.

Nothing like an open, inclusive process

The Washington Post has this story which says that Virginia is accepting $1 million to study the issue of adding a third west-bound lane to Interstate 66 in Arlington County. The government of Arlington County is firmly against the project.

Governor Warner wrote that "An open, inclusive process that involves citizens and businesses from Arlington and Fairfax . . . is the only way to implement a realistic, affordable and effective transportation solution in this corridor."

Meanwhile, Mike Still has this excellent article that says, among other things, that local governments have 60 days to get their say in on the Interstate 81 proposals, while the two contractors are making some pretty substantial adjustments to their numbers. Still writes that "STAR has reduced its estimated cost from $7.54 billion to $6.3 billion, while Fluor now acknowledges its plan will cost about $5.9 billion," and that STAR says 15 years, Fluor says 8 years (up from 6).

The articles by Mike Still are pretty worthwhile, because this project is so huge and its disruptive effect will be so great. The challenge of government will be to reach a worthwhile compromise of the competing elements of the public interest - to make a lasting and worthwhile improvement in the roads, without paying too much, and without torturing the people who live and work where the improved roads are located.

Jonesborough sued for false arrest

The Kingsport paper (registration required) has this story on a lawsuit filed by a businessman for stealing another man's property. The plaintiff claims there is a dispute over whether the property was paid for, and claims that the police should not have arrested him on the criminal charges initiated by his creditor. The criminal charges were later dismissed.

One of my law school professors once said in class that he was opposed to the criminalization of debtor-creditor relations. (Actually, he said "debtitor-creditor relations," which may be how I remember the phrase.) It is usually a mistake for a commercial party to try to use criminal procedure to settle a dispute over who owes what to whom. (For one thing, it makes the guy who gets arrested really, really mad.)

Discovery sanction of dismissal affirmed

In Good Steward Christian Center v. Empire Bank, the Eighth Circuit upheld dismissal of the plaintiffs' case for failure to comply with discovery orders. The appeals court summarized the case as follows: "In the short, but tortured history of this case, GSCC and Vaughn have made inappropriate ex parte communications, in direct violation of a district court order; made numerous baseless motions for sanctions against Appellees' attorneys; failed to properly answer requests for admissions; obstructed discovery during depositions; and failed to pay the sanctions ordered by the district court. In light of this, we do not think the district court abused its discretion."

After the first round of bogus motions from the plaintiffs, "the district court presciently advised 'Plaintiffs to curb their desire to motion the Court at whim, lest they find themselves on the receiving end of the sanctions they so persistently and unfoundedly request.'"

The appeals court also noted, "A glance through the docket sheet of the proceedings on appeal reveals more of the same conduct–e.g., three requests
for extensions to file the initial brief followed by an order to show cause why the case should not be dismissed for failure to file a timely brief; numerous motions to supplement the record with "amended" and "corrected" briefs after the initial brief finally was filed, few of which comply with our rules; a motion for protective custody from a United States Marshal for plaintiffs and their counsel; a motion for an "extraordinary writ" alleging RICO violations by the district court; and, since argument, an "emergency motion" for a temporary restraining order leveled at a state court. While we stop short of actually sanctioning Appellants and their counsel, we admonish them in the future to better respect the federal judicial process."

In Lafleur v. Teen Help, the Tenth Circuit likewise affirmed dismissal of claims for discovery violations, based on this record:

"Defendants filed discovery requests for the son's psychological and school records and for the father's documentation of his expenses and injuries. In February 2000, the Goolds responded by saying the records were being compiled. Goold App. at e.g., 75, 124, 140. The magistrate judge held a hearing on November 21, 2000, on defendants' motion to exclude expert witnesses because the Goolds had not produced the necessary reports of their proposed experts or the documentation on which the reports were to be based, which was the same documentation defendants had requested. The magistrate judge extended the deadline for filing expert witness reports and imposed a sanction of $750 on the Goolds for requiring defendants to bring the motion. Thereafter, defendants filed a motion to compel production of the psychological, financial, and school records. The magistrate judge held another hearing on February 1, 2001, and ordered the documents to be produced by February 14, 2001. Goold App. at 391. The magistrate judge also imposed another monetary sanction against the Goolds and their attorney for failure to cooperate with discovery, this time for $500. Id. at 309, 394. The discovery was not produced by the deadline, or ever."

Notice seeking sign removal enough to base First Amendment claim

In Eckles v. City of Corydon, the plaintiff filed suit claim, among other things, that the government officials violated his First Amendment rights by giving him notice to remove signs which he had posted on his property protesting the over-valuation of his property for tax purposes. The Eighth Circuit said that was enough of an injury to state a claim.

The signs said stuff like this:

"Since July 2000, Eckles has posted several signs on his property. The
following examples are illustrative of the messages displayed:
• “You are looking at the reality of God in my life, and God’s judgment upon
the wicked. - I am not a QUEER! I am not a FAGGOT! What I am is a
repentant Sinner Saved by the Mercy and Grace of God. - Church Member
Richard Couchman has cast the first Stone WHO WILL BE NEXT?”
• “City of Corydon and Wayne County Guilty of Prejudice, discrimination, bigotry, bias.”
and UNJUST, A FALSE BALANCE TAXES is Abomination TO THE LORD. Proverb 11:1. CITY OF CORYDON Abomination to the Lord, and Wayne County. REPENT.”
• “The THIEF (Wayne County Assessor) commeth but to Steal. John 10:10”
• “This home Destroyed because of Wayne County ASSESSOR. I can’t afford the false unfair and unjust taxes. No Compromise.”
• “SHAME, SHAME, SHAME. This property ALSO over TAXED! By Assessor Kay Middlebrook - Church Member Richard Couchman (Board of Review) Denied me 3rd Appeal. No Compromise.”
• “Declare ye among the nations, and publish, and set up a standard; publish, and conceal not: Jer. 50:2. The whole land is made desolate, because no man
layeth it to heart .. NO ONE CARES NO NOT ONE. Jer. 12:11. REPENT.”"

Frequent filer denied law license, federal litigation ensues

In Dubuc v. Michigan Board of Law Examiners, the Sixth Circuit reversed in part the dismissal of plaintiff's constitutional claims, in a case about the federal civil rights suit brought by an individual denied admission to the Michigan bar for lack of good moral character.

Evidently, the evaluation of the applicant's moral character involved some consideration of his history as a litigant:

"Dubuc had been involved in approximately thirty-eight lawsuits in the twenty-five years preceding his Board hearing. He filed one of these lawsuits in Michigan’s Livingston County Circuit Court in 1992. In 1993, he moved to disqualify the presiding judge, Judge Daniel Burress. During a hearing on September 27, 1995, Dubuc accused Judge Burress of engaging in a conspiracy against him. During a hearing on October 6, 1995, Dubuc told Judge Burress that he had filed criminal charges against him for conspiracy, bribery, bribery attempt, and abuse of process. In an affidavit he filed in support of his criminal charges, Dubuc attested that Judge Burress was engaged in a “conspiracy to destroy [him],” obstruction of justice, abuse of process, bribery, and attempted bribery.

Judge Burress ordered Dubuc to pay over $180,000 in sanctions for violating several court orders, and after a bench trial, Judge Burress dismissed Dubuc’s lawsuit as frivolous. The Michigan Court of Appeals affirmed Judge Burress’s decision to award sanctions and dismiss the lawsuit. Dubuc v. Green Oak Township, No. 191293, 1999 WL 33455145 (Mich. Ct. App., Jan. 5, 1999). The Michigan Supreme Court denied Dubuc’s application for leave to appeal, 604 N.W.2d 679 (Mich. 1999), and denied his subsequent motion to reconsider, 609 N.W.2d 829 (Mich. 2000). In conjunction with the denial of his motion to reconsider, Justice Corrigan, joined by a majority of the other Michigan Supreme Court justices, issued a statement encouraging the trial court to consider “extraordinary sanctions to deter [Dubuc] from continuing his vexatious tactics that have led to years of abusive litigation.” 609 N.W.2d at 829. Among many other things, Justice Corrigan found that Dubuc had engaged in abusive and frivolous tactics to delay the proceedings, including “naming the trial judge as a witness; seeking to depose the judge; accusing the judge of criminal conduct and of conspiring with defense counsel; and threatening to file a complaint with the Judicial Tenure Commission against the judge.” Id. at 830.

Relying upon the Michigan Supreme Court’s decision denying Dubuc’s motion to reconsider, the Board found that the issue of whether sanctions were appropriate against Dubuc had been decided against Dubuc and was no longer an issue for the Board to resolve. Dubuc’s attorney admitted to the Board that he knew of no facts that would support a criminal charge against Judge Burress for bribery or conspiracy. Dubuc stated to the Board that he had not intended to accuse Judge Burress of bribery, but that he meant only to accuse Judge Burress of knowing that bribery was occurring and doing nothing to stop it. According to the Board, Dubuc refused to accept responsibility for falsely accusing a judge of criminal actions and persisted in believing that the issues in front of the Board were not his fault. In its opinion, the Board found that his failure to accept responsibility for his actions prevented him from carrying his burden to prove that he was fit to practice law."

In his lawsuit, the plaintiff sought, among other things, "declaratory and injunctive relief prohibiting defendants from using his alleged First Amendment activities (criticizing a judge) as a basis for denying his second application."

Misinformed bad intentions result in unfair labor practice

In JCR Hotel, Inc. v. NLRB, the Eighth Circuit held that an employer was guilty of unlawful discrimination under the section 8(a)(1) of the National Labor Relation Act when the employer fire a worker based on the "erroneous belief that [the] employee is engaged in protected concerted activity." A co-worker had told management "that rumor had it that Patsy was trying to get some of the people to walk out on a full house day," which wasn't true, but the employer believed it, and fired Patsy.

Griffin to chair Virginia Republicans

Kate Obenshain Griffin was selected on Saturday to be the new chairman of the Republican Party of Virginia, as reported here in the Roanoke paper.

Why not a cure

My mom's mom's maiden name was Poff, and so I read stories about Poffs in the Roanoke and New River Valley areas (even though most of them, including lawyer Bill Poff and former Congressman and Virginia Supreme Court Justice Richard Poff, are not related to me in any way that I know about). Here is a story on the death of a man from Pilot, Virginia, named Poff who died of ALS.

I was out on the golf course at the Virginian yesterday, as a volunteer for the Senior USGA Amateur championship. Tom Watson won a Senior PGA major last week in Oregon, with his long-time caddy Bruce Edwards on the bag. Edwards has been diagnosed with ALS. The website for their fundraising effort to find a cure is here at

More on natural gas line challenges

This Roanoke Times article outlines another and further challenge to the development of interstate natural gas pipelines through Southwest Virginia, in the form of an appeal from the Federal Energy Regulatory Commission (FERC) to the U.S. Court of Appeals for the D.C. Circuit. Among the issues is how it is that the pipelines proceed while the appeal is pending.

Of course, if pending litigation stopped a pipeline, then the anti-pipeline forces would achieve their victory by litigating their claims in such a way as to avoid a determination on the merits as long as possible.

Where's the line between pain relief and drug dealing

The Roanoke Times has this article on the issues in the upcoming trial in the W.D. Va. of Dr. Cecil Knox, including whether his practice "was either a haven for patients no one else would treat or an efficient drug-distribution operation."

Commentary on immigrants' lawsuit against Virginia colleges

The Washington Times has this commentary bashing the lawsuit brought against Virginia's public colleges and universities over the issue of the admission of illegal aliens. At issue is whether the schools should have followed the Attorney General's opinion, in which "Mr. Kilgore recommended that all colleges in the state deny admission to individuals who cannot prove they are legally in the United States."

The Times concludes with the following:

"In short, MALDEF and the lawyers at Arnold & Porter surely realize that there is no constitutional problem with Virginia's decision to bar illegal immigrants from receiving taxpayer-subsidized higher education in the state. Their real hope, doubtlessly, is that if they can find an ideologically like-minded federal judge willing to stand the law on its head on behalf of illegal immigrants and the political agenda of open borders, they can legally subvert the law."

I wonder which judge will hear the case.

Southwest Virginia strip mine becomes vinyard

In Wise County, one enterprising farmer is growing grapes to make wine on the site of a reclaimed strip mine, according to this AP report.

How to value views on the Blue Ridge Parkway

This AP article discusses the efforts to figure out how to put a value on the views around the Blue Ridge Parkway.