Saturday, October 11, 2003

On the reasonable man and stuff you can't say

Tim Sandefur has this delightful post which quotes at some length from a description of that legal animal known as "the reasonable man" and further speculation on the absence in law of a "reasonable woman," adding as to the latter an immediate disclaimer (in which I join fully).

Tuesday, October 07, 2003

Ninth Circuit says F.C.C. wrong on classification of cable modem service

I've read the opinion, actually the three opinions (here), read the articles in the NY Times and the Washington Post and USA Today and the AP, and I have no idea what is the meaning or significance of the 9th Circuit's ruling in the cable modem case, other than that the Court did not agree entirely with the F.C.C.'s determination about what cable modem service is and is not, which could or could not have some implication as to whether cable system owners could be required to share their cable networks with other service providers. Most of the opinions have to do with the law of stare decisis, as much as anything else, so I guess if I had any sense I would read the 9th Circuit's earlier opinion in the Portland cable modem case.

At one time, there was some interest in at least one Southwest Virginia county in trying to force the cable franchise holder as a condition of the renewal to allow open access to its cable network, and I thought the idea was scrapped after some court in the Portland case ruled against such a requirement, but maybe I've got all this backwards in my mind.

Hey, that was my money

In Dove v. Commonwealth, a panel of the Virginia Court of Appeals in an opinion by Judge Annunziata joined by Judge Benton and Senior Judge Coleman reversed the appellant's conviction for embezzlerment, where the issue was the appellant owned a filling station (as we say here in Mayberry) and had failed to remit to his supplier the proper share of the proceeds from his gasoline sales, instead spending the money on other things. The Court concluded that even though Mr. Dove owed the money, it was not proven that the money was somehow property of the supplier in a way that it could be "embezzled" within the meaning of the statute, Va. Code § 18.2-111.

Beware the witness who calls time on his own deposition

In Jeffress v. Reddy, one of the issues was whether Judge Moon of the W.D. Va. properly excluded the deposition testimony of one of the plaintiff's expert witnesses. Prior to the deposition, there was some dispute about payment of the expert's fee, and the Court ordered that the defendant would pay for 2 hours at $500. The expert took this to mean that he could quit answering questions after two hours, which he did. The Court ruled at trial that this transcript could not be used as evidence, because of the way it limited the defense questions, saying "it just seems so grossly unfair that a witness can call off his deposition, say "I am not going to testify any more," and at the deposition he can decide you like what’s there and so you get to use the deposition." On appeal, the Fourth Circuit in a per curiam decision for Judges Widener and Wilkinson, joined in part by Judge Traxler, the trial court's ruling on the deposition testimony was sustained. Judge Traxler dissented on this issue, concluding that there ought to have been something else done other than the complete exclusion of the deposition testimony of the expert.

Action for declaration on reimbursing Medicare from suit proceeds dismissed as premature

In Baughan v. Thompson, Judge Michael of the W.D. Va. ruled that the action seeking a declaration of whether the government was entitled for reimbursement of Medicare benefits out of the proceeds of an insurance settlement could not proceed without first obtaining an administrative decision from the Secretary of the Department of Health and Human Services. In the underlying claim, the plaintiff was injured by her neighbor's dog, her medical care was paid for initially by Medicare, and then she got a settlement from the neighbor's homeowners' insurance, and was trying to figure out what if anything should be paid out to the government.

Pleading contribution, indemnification, and a third-party complaint in a case about bad water meters

In AMCO Water Metering Systems, Inc. v. Travelers, Judge Michael upheld the recommendations of Magistrate Judge Crigler to deny in part the third-party defendant's motion to dismiss the third-party complaint seeking contribution and indemnification. In particular, the Court ruled that the elements for a contribution claim were satisfied, even though there was no privity between the parties and the losses for which recovery was sought were purely economic. On indemnification, the Court held that the claim was premature. Regarding whether the claims were properly brought as third-party claims, the Court concluded that they were derivative, not independent, and therefore properly brought as third-party claims.

Search begins before warrant shows up, case dismissed

The Kingsport paper (registration required) has this report on the dismissal of a major drug case in Tennessee because the search warrant did not arrive at the scene until 15 minutes after the search began.

The article says in part:

"Criminal charges against three Michigan people alleged to be involved in the biggest crack cocaine seizure in the history of Hawkins County were dismissed Monday due to a technicality. . . .

During a preliminary hearing Monday in Hawkins County Sessions Court, TBI Agent C.N. Wilhoit, who obtained the search warrant, testified that he arrived at the Vandegrift residence 10 to 15 minutes after the search of the residence began.

As a result, Sessions Judge David Brand ruled that the search warrant was illegal and none of the items allegedly confiscated as a result of the search could be used as evidence.

Without use of that evidence, the Class A felony possession of Schedule II narcotics charges against Jackson, Coleman and Thompson - who were at the residence at the time of the search - were dismissed."

Pharmacy school to follow law school in Buchanan County

As reported here in Roanoke, Buchanan County officials plan to follow up on the success of the location of the Appalachian School of Law in Grundy with a new pharmacy school also to be located there.

Monday, October 06, 2003

Analysis of general district and juvenile & domestic relations district court statistics

I'm not sure what it means, but this summary of the case statistics from the different districts shows the rate of change in the numbers of cases for the different districts with colorful maps of the state.

The big case the government should have brought against Microsoft

This ZDNet article ponders the implications of the products liability suits filed against Microsoft - claims that certainly make more sense than the attempt to lasso the computer industry within the confines of an anti-trust case. Everyone wants to get what they are paying for - software that works. (And government users seem to have as many software problems as anyone.)

Keeping taxes out of 2003 state elections

This article in the Washington Post explains how and why Governor Warner has avoided making this year's legislative elections a referendum on his plans for tax reform (whatever those plans are).

Falwell law school update

Via VLW, the Lynchburg paper has this update on the plans to open a law school as part of the Reverend Falwell's Liberty University in Lynchburg in the Fall of 2004.

Sunday, October 05, 2003

Today's Virginia tax reform item

This column from the Norfolk paper describes a few ideas on reforming the tax laws of Virginia. One Republican legislator would "wipe out hundreds of exemptions to the sales tax, apply the tax to most services, and lower the rate from 4.5 percent to 4 percent. Then, he'd eliminate almost every addition, subtraction and deduction to the state income tax, including an overly generous break for seniors, and revamp a schedule in which the highest tax rate -- 5.75 percent -- kicks in at $17,000. The new plan would leave the first $15,000 of income untaxed for everyone. A top rate of 6.25 percent would apply to income above $50,000." Another group has a plan that "revamps the income tax and expands the sales tax to services, while eliminating the sales tax on food and adjusting the corporate income tax. The income-tax design is more progressive than Louderback's, with a top bracket of 7 percent kicking in at $100,000, while on the sales tax side, health care services, insurance and utility bills are exempt. The plan would produce about $1.48 billion in new revenue, which the organizing project believes will be needed to balance the state budget."

(Now, if I can just figure out how to claim that legal services are good for your health and a form of insurance against bad things happening.)

Let me show you my collection of "I like Ike" buttons

In Suffolk, where there will be seven candidates on the ballot running for the office of clerk of court, a dispute has arisen between the local Republican nominee, and another candidate who also advertises that he is a Republican, over who is the "real" Republican candidate for the position, as reported here in the Virginian-Pilot.

Environmentalist lawyer quits State Water Control Board

The opponents of the selection of environmentalist Kay Slaughter to sit on Virginia's State Water Control Board finally got their way, as she has resigned over continued criticism the perceived conflict between her service on the board that decides what to do about polluters and her law practice as an advocate in environmental matters, according to this report in the Norfolk paper and this report in the Charlottesville paper.

On being a specialist in the defense of death penalty cases in Virginia

Mark Holmberg of the Richmond paper has this column on criminal defense lawyer Craig Cooley, who "has served as co-counsel for 60 or so people accused of capital murder."

After exposing the VaCo conference, Richmond paper targets VML

In this story, a writer for the Richmond paper reveals that local government officials went to the Virginia Municipal League convention in Norfolk and spent public money on golf and seafood - with 8 people from the town of St. Paul running up a tab of $9,030.69. To add perspective on this sum, the writer notes that "[h]ad Virginia Beach spent proportionally as much as tiny Saint Paul, the city's convention cost would have exceeded $3.78 million."

Comparing the county representatives and their gathering at the Homestead with the city and town officials who met in Norfolk, the paper concludes "the Norfolk conventioneers easily outspent their counterparts at The Homestead by showing up in greater numbers and spending more freely on their spouses, fine food, boat cruises and other extras."

Related articles are here, here, here, and here.

There was no description of what if anything the representatives learned of use from this meeting. Maybe the Town of St. Paul got $10,000 worth of knowledge from the meeting in Norfolk. Sometimes a seminar or convention is worth the money, although such things are impossible to measure. For example, new government officials, like new lawyers and new judges, might need a lot of education and education to get a clue.

There was also no consideration of what if any are the tax implications of these events - can the IRS claim that payments for the travel and entertainment expenses of non-working spouses count as additional income that should be taxed? It says here that "if a spouse, dependent, or other individual goes with you (or your employee) on a business trip or to a business convention, you generally cannot deduct his or her travel expenses," in this IRS publication, but I don't know anything about tax law.

Testing of forensic evidence in Virginia

This Bluefield paper article describes the system in Virginia for testing of forensic evidence, against the background of a murder in Bluefield, Virginia.

Damascus and the Virginia Creeper Trail

Beth Macy (one of my all-time favorites) wrote this article for Saturday's Roanoke Times about the success of the Virginia Creeper Trail and its effect on Damascus.

The article includes the following tale of one feathered resident:

"And then there's Pete. He's the rooster who routinely wanders through the back door of Adventure Damascus, the bike repair and shuttle shop. Bike mechanic and shop co-owner Bill Leonard doesn't technically own Pete, though he feeds him regularly and uses him in photo ops; writers from newspapers and Outside and Men's Journal magazines have featured the town - and Pete - in recent years. 'You can't eat a celebrity,' Leonard says of Pete. 'That's the only thing that's saved him from going in the dumplin' pot.'"

What's in a name?

I must confess I google my own name from time to time, with interesting results, such as this (bogus) interview, which begins: "Steve Minor has been leading naked motorcyclists on trips around the Sound for more than a decade."

In fact, I've never been to the Puget Sound.

2003 rarity - "closely-watched" race for a Va. legislative seat

The Washington Post has this article on the Virginia Senate campaign between the incumbent, Senator "Edd" Houck, "a Democrat who has long represented a Republican-majority district," and his Republican challenger, Robert G. Stuber.

According to the Post, "Stuber opposes all new taxes and proposes returning millions of dollars that the government receives from the personal property tax on cars and from families with children who attend private schools or are schooled at home, as Stuber's two children were."

The election is made interesting by the changing demographics of the district, in the outer sphere of the D.C. metro area.

Rail worker asbestos cases out of Roanoke

The Roanoke Times has this overview of asbestos claims brought by former Norfolk & Western employees in Roanoke. The article notes that the cases are "piling up" in state court. Virginia has a special statute for the management of asbestos cases. Va. Code § 8.01-374.1 provides that "[i]n any circuit court in which there are pending more than forty civil actions against manufacturers or suppliers of asbestos or products for industrial use that contain asbestos in which recovery is sought for personal injury or wrongful death alleged to have been caused by exposure to asbestos or products for industrial use that contain asbestos, the court may order a joint hearing or trial by jury of any or all common questions of law or fact which are at issue in those actions," and that "when separate or bifurcated trials will be conducive to judicial economy, the court may order a separate or bifurcated trial of any claim, or any number of claims, cross-claims, counterclaims, third-party claims, or separate issues, always preserving the right of trial by jury."

Identity crisis

In recent weeks, my wife got a notice from the DMV about a Jeep she never owned, my dad got a call from the Virginia State Police about an application to buy a gun he never filed, and I got a call about a credit card debt for an account I never had. (Now, Dad has no use for guns, but we could have used the Jeep and the lower credit card balance, but apparently those were not being offered.)