Thursday, October 30, 2003

No constitutional protection for soliciting sex at the mall?

A circuit court judge rejected arguments based on Lawrence v. Texas and refused to dismiss the criminal charges against a man accused of soliciting sex in the men's room at a Virginia Beach shopping mall, according to this report in the Virginian-Pilot, which quoted the defense lawyer as saying, "Either way you look at it, whether he’s found guilty or not guilty, the opposing side will appeal because it’s a case involving a serious legal shift."

Rehearing on case of aiding and abetting a failure to appear splits Court of Appeals

The Virginia Court of Appeals split 5-5 on the rehearing en banc in Frazier v. Commonwealth. The earlier panel decision reversed the defendant's conviction for improper use of her testimony in the underlying failure to appear case of her boyfriend. The now-vacated panel opinion was written by Judge Elder, joined by Senior Judge Coleman, with Chief Judge Fitzpatrick dissenting. The rehearing was sought by the Commonwealth. The 5-5 vote means the conviction is affirmed.

Criminal solicitation of a minor using IMs and a webcam

In Brooker v. Commonwealth, the Court of Appeals in an opinion by Senior Judge Overton joined by Judges Elder and Bumgardner affirmed the conviction of the defendant for solicitation of a minor based on the instant messages and the webcam images of himself he sent to what he thought was a 12 year-old girl who turned out to be a police officer.

Wise County opposes federal jurisdiction and class certification in landfill fee suit

This article in the Coalfield Progress describes the defense arguments in the federal lawsuit brought against Wise County on behalf of the purported class of persons and business who paid the landfill fee that has been declared unconstitutional.

The County's answer to the question of what is the state law remedy is that plaintiffs can proceed under the Virginia Declaratory Judgment Act, which is not the greatest answer, but maybe the only one there is. I've been wondering whether there is some remedy in the tax laws or landfill fee laws.

Of course, I would suppose now that the County has staked out its position on the remedy of the landowners, it would be a bit unruly for the County to say in state court to anyone who pursues that route that there is no such remedy.

Commentary against the Allen nomination

In this editorial, the Virginian-Pilot says that to know why the nomination of Claude Allen is a bad idea, compare his credentials with those of another recent nominee to the Fourth Circuit, Judge Allyson Duncan.

Postponement granted in case of park murders as evidence begins to point elsewhere

As reported here in the Washington Post and here in the Richmond paper and here in the Roanoke paper, the prosecution theory in the W.D. Va. for the alleged "hate crime" murder of two women in the Shenandoah National Park is coming unraveled as re-examination of the evidence points to someone other than the defendant, which would make the "hate crime" aspect a complete fiction. In any event, the Court has granted a request to delay the trial.

Wednesday, October 29, 2003

Still more on the Claude Allen hearing

This article from the Richmond paper is the best of the lot in its description of the Senate Judiciary committee hearing on the nomination of Claude Allen to the Fourth Circuit. It notes among other things that Republicans objected when President Clinton nominated Judge Gregory to a "North Carolina" seat, but then President Bush renominated him, anyway.

It also describes the scene as Michele Finn watched Allen explain his role in the Hugh Finn case:

"Michele Finn of Kentucky watched somberly from the audience when Allen was asked to define his role in the case of her late husband, Hugh Finn. She had fought for removal in 1998 of her brain-damaged husband's feeding tube, a step the administration of then-Gov. Jim Gilmore ultimately opposed.

In a June letter, Michele Finn staunchly opposed Allen's confirmation. She wrote that as Virginia secretary of health and human resources, he 'was a core participant in a concerted effort to impose his personal agenda and beliefs over the legal and moral rights' of her husband.

Under questioning by senators, however, Allen described as 'ministerial' and 'minimal' his role in the episode. He said he had no personal role in Virginia's decision to intervene in the case."

Against the background of this hearing, last night I read this post from the Legal Theory Blog, where he argues for the old-fashioned standard in selecting judging judge candidates, that they possess "judicial virtues," that is, whether they are persons who are "learned in the law, who had practical wisdom, who possessed civic courage and a judicial temper[a]ment."

Employee reaches year of employment for FMLA eligibility purposes while off work

In Babcock v. BellSouth Publishing and Advertising Corp., the Fourth Circuit in an opinion by Judge Shedd, joined by Chief Judge Wilkins and Judge Gregory, affirmed the verdict in favor of the plaintiff's unlawful discharge claim under the Family and Medical Leave Act, where the employer kept the plaintiff on the payroll through her anniversary date, even though she was not working, and as result she became an "eligible employee" protected by the FMLA.

Still more on the Claude Allen hearing

The NY Times (registration required) has this article on the Senate committee hearing for Fourth Circuit nominee Claude Allen, which provides in part:

"[I]n an extraordinary tableau, sitting at the same witness table were the two senators from Maryland, Paul S. Sarbanes and Barbara A. Mikulski, who were incensed because the seat for which Claude Allen was nominated has traditionally gone to a candidate from Maryland.

Senator Sarbanes, known for his laconic and droning manner, was so animated in his remarks that Senate staff members said they had never seen him so emotional.

Like Ms. Mikulski, he did not address Mr. Allen's qualifications for the job. Instead, he said he had been misled by the White House counsel, Alberto R. Gonzales, who assured him that he would try to see that the seat would remain reserved for Maryland.

. . . Mr. Allen has been nominated to a seat formerly filled by Judge Francis D. Murnaghan Jr. of Maryland, who died in 2000. If Mr. Allen was confirmed, it would mean that Maryland, with 20 percent of the population in the circuit, would go from three seats to two on the 15-member court.

White House officials said Tuesday that while Mr. Gonzales wrote Senators Sarbanes and Mikulski last July, saying he would try to apportion the seats on the court fairly, he explicitly said Maryland's proper entitlement could be two or three seats."

More on the Claude Allen hearing

Today's Washington Post has this article on the objections of the two Democratic senators from Maryland raised at the Senate committee hearing yesterday on the nomination to the Fourth Circuit of Claude Allen (who like William Haynes probably needs to buy a new house, maybe in Maryland).

The article says in part:

"Behind the dispute is a suspicion among Democrats that Bush turned to Virginia and its two GOP senators to avoid having to deal with the Maryland Democrats, who had objected to Bush's first choice for the seat. The administration contends that the choice of a Virginian is justified on grounds of population and caseload.

By shifting the seat to Virginia, Bush made a 'gross departure from practice' that normally guides presidents in apportioning seats on multi-state circuit courts, [Sen.]Sarbanes told the Senate Judiciary Committee at the start of a hearing on Allen's nomination. Sen. Barbara A. Mikulski (D-Md.) called on Bush to withdraw the nomination, and Sarbanes said he plans to oppose the nomination 'with all the strength I can muster.'

Sarbanes said later that he will filibuster the nomination if it comes to the Senate floor. It takes 60 votes to break a filibuster, a high hurdle for the 51-member GOP majority in the 100-member chamber. Democrats have successfully filibustered three nominees this year and are considering trying to block a few others."

The reasoning of Senator Sarbanes seems even lousier than that of the NY Times in its opposition to some of the court of appeals nominees. There are two Marylanders on the Fourth Circuit, so it is not like they are being shut out. On the other hand, ironically, Senators Warner and Allen from Virginia were making some of the same arguments against the nominee to replace Judge H.E. Widener, Jr., on the Fourth Circuit with a fellow who lives in D.C.

Tuesday, October 28, 2003

More on the Roger Coleman case

From the latest edition of the University of Richmond's Journal of Law and Technology, this article on the media's "right" to retest DNA post-conviction - focusing on the media's attempts to access the DNA of Roger Coleman, who was executed after his conviction for murdering a woman in Buchanan County.

On downward departures from the federal sentencing guidelines

Talk Left had a link to this lengthy report from the U.S. Sentencing Commission on downward departures from the federal sentencing guidelines.

The report says, among other things:

"Departures play an important role in the federal sentencing guidelines system for several reasons. There may be offense guidelines that do not specify a sentence adjustment for a particular circumstance because either it occurs infrequently in connection with a particular offense, is difficult to quantify, or is truly unique. When such a circumstance does occur, however, it may be important and could be accounted for only by permitting the court to depart from the guidelines.

Departure decisions also provide the Commission with important feedback from courts regarding the operation of the guidelines and improve its ability to make ongoing refinements to the sentencing guidelines. Frequent or increasing use of departures for a particular offense, for example, might indicate that the guideline for that offense does not adequately take into account a particular recurring circumstance."

On the 100th birthday of Evelyn Waugh

Via Southern Appeal, this post (laden with other links) says that the British author Evelyn Waugh would have been 100 years old today on October 28, "the holy Ramadan of the Anglophilic right."

I must confess I've probably reread Brideshead Revisited 20 times - a book that I stole from a pile my in-laws planned on throwing out or giving away. I would not have thought that I was of the "Anglophilic right"; maybe the appeal is that Sebastian Flyte (like another of my favorites, Inspector Morse) was sent down from Oxford, and Oxford is close by to Abingdon, which has the same name as the Virginia town where I've lived mostly since 1969. (That may be the lamest Southwest Virginia connection yet attempted in this blog.)

More on affirmative action at U.Va. law school, and law school in general

The Curmudgeonly Clerk has this post in response to the third-year law student's letter to the Washington Post on the subject of diversity at the University of Virginia law school.

Mostly unrelated to diversity, down the page the Clerk has this post on the use of the Socratic method in law schools, which concludes with this delightful story:

"One day in my first year Criminal Law class, the professor was mercilessly grilling a rather reticent female student. He asked her to recite the facts of a case. When she began a meandering recital replete with irrelevancies, he began to mock her. He proceeded to interrogate her; each question was dripping with sarcasm and condescension. The purport of his inquiries could not have been more clear: he wanted her to focus solely on the material facts. She, however, was too befuddled and flustered to grasp his point. So the professor proceeded to the student seated next to her and asked, 'Why am I mocking her?' Unfortunately for the professor, this student was honest to a fault. Without pause, he responded, 'Because you are a jerk.'"

Two things I have in common with Howard Bashman

If this post is any measure, we were both born in October of 1964 and we have both been to Pittsburgh.

Maryland senators and paper take on Allen nomination at Senate hearing

Via this post at How Appealing, this AP report describes how the Senate committee hearing for Fourth Circuit nominee Claude Allen, at which Maryland's senators showed up to oppose the nomination.

Also, the Baltimore Sun had this commentary opposing the nomination of Mr. Allen.

This commentary says that Allen and other Bush nominees to the courts of appeals were rated "well qualified" by the ABA standing committee. I don't believe that's true, as to Allen, William Pryor, Deborah Cook, or Janice Brown - not according to this list from the ABA website.

The Curmudgeonly Clerk has this post on the ABA ratings and how they don't matter, except when they do.

Cigarette smuggler loses tractor, keeps trailer

In U.S. v. One 1998 Tractor, Judge Jones of the W.D. Va. held that a criminal defendant's tractor was subject to forfeiture for being used in smuggling cigarettes across state lines, but that the man's trailer was not used in the smuggling and was not subject to forfeiture as part of the same "vehicle" within the meaning of 49 U.S.C. § 80302.

The underlying facts were these:

"On September 6, 2002, while returning to California after having delivered his trailer’s cargo of produce to its destination in New York, driver-owner Shimshiryan and a companion stopped at a tobacco sales outlet in Virginia in this judicial district. The two men purchased and loaded approximately twenty-three half cases of cigarettes (approximately 282,400 cigarettes) into the cab of the tractor and went on their way. Shimshiryan intended to take the cigarettes back to California and from there send them to his brother in Armenia who in turn would sell them for a profit. The sales outlet had been under surveillance by law enforcement officers and Shimshiryan was followed a few miles into the neighboring state of Tennessee. Agents from the Bureau of Alcohol, Tobacco, and Firearms, along with state and local law enforcement officers, stopped the tractor-trailer in Tennessee and recovered the cigarettes from the tractor. These cigarettes did not bear Tennessee state tax stamps as required by law. Shimshiryan’s criminal prosecution and this in rem forfeiture action followed."

University of Maryland president, students, blast U.Va. as "overrated"

This editorial in the University of Maryland student newspaper builds on recent comments from the president of the University of Maryland president and concludes that the Terrapin Nation should "Hate Virginia."

The Diamondback editorial was in response to this column in the Cavalier Daily about the Maryland president's remarks.

AG candidate Baril has got the Hampden-Sydney men behind him

This short item in the Washington Times says that one source of support for the candidacy of Richmond lawyer Stephen Baril for office of attorney general of Virginia are the alumni of Hampden-Sydney College, about which the article notes -

"Founded in 1776, six months before the Declaration of Independence, Hampden-Sydney has a student body of about 1,000. Among its graduates are one U.S. president — William Henry Harrison (the trunk of this columnist's family tree), 13 senators, and numerous congressmen and state officials. A popular bumper sticker at the college bookstore reads: 'Hampden-Sydney College — Where men are men and women are guests.'"

Engineering school at UVa-Wise would be "expensive, complicated and difficult"

The Chancellor of the University of Virginia College at Wise explains here why adding an engineering school to the programs offered there would be worthwhile in spite of the obstacles.

Forget the RIAA, the VMI Honor Court is taking on file-swapping

According to this report in the Roanoke Times, the student-run Honor Court at the Virginia Military Institute has begun "considering making copyright infringement an honor-code violation tantamount to stealing," and therefore an honor offense which could lead to expulsion from the school.

The article notes -

"In Williamsburg, the College of William and Mary uses technology to restrict students from transferring music files.

William and Mary students are required to complete a training course that includes a section on copyright law before they can access the Net. Those who don't get the message are encouraged to stop sharing files. Those who continue swapping might go on probation, while expulsion would be likely only under the most extreme of cases, Walker said.

The University of Virginia asks student offenders to stop illegal file-sharing. Repeat offenders would lose their network connection and be forced to pay $100 to regain access.

In spite of the publicity over file-sharing, it isn't clear that all students grasp the law. At VMI, officials continue to face a generational gap on the issue. The older generation considers file-sharing a clear-cut case of theft, but it's tougher convincing students that swapping music files is about more than sharing."

Number of jury trials in criminal cases in Virginia keeps going down

As reported in this story in the Norfolk paper, the number of jury trials in criminal cases in Virginia's state courts continues to decline, mostly because of the bifurcated trials that allow use of the defendant's criminal record in the sentencing phase -

"Prosecutors and defense attorneys say the decline has been caused by the state's trial system, in which juries learn a defendant's criminal history before imposing a sentence. Juries tend to sentence people more harshly than judges, prosecutors and defense lawyers say, and fewer defendants are willing to risk handing their fate to 12 strangers.

In 1991, 3.9 percent of criminal cases in Virginia ended with jury trials, according to statistics compiled by the state Supreme Court. Virginia began giving all juries information about criminal records in 1994. By 2002, criminal jury trials had fallen to 1.5 percent of concluded cases."

Monday, October 27, 2003

New standard for relief from real property assessments in Virginia

I don't know but I've been told that 2003 Acts of Assembly, Chap. 1036, changes the standard for getting relief from tax assessments. In particular, Va. Code § 58.1-3379(c) as of January 1, 2004, will provide: "The burden of proof shall be upon a taxpayer seeking relief to show that the property in question is valued at more than its fair market value, that the assessment is not uniform in its application, or that the assessment is otherwise not equalized. In order to receive relief, the taxpayer must produce substantial evidence that the valuation determined by the assessor is erroneous and was not arrived at in accordance with generally accepted appraisal practice. Mistakes of fact, including computation, that affect the assessment shall be deemed not to be in accordance with generally accepted appraisal practice."

Judge Glen Conrad of W.D. Va. took oath of office in Roanoke on Friday

The Roanoke paper had this article on the ceremony in which Judge Glen Conrad took his oath to become U.S. District Court Judge for the Western District of Virginia.

The article notes, among other things, that Judge Conrad passed the Senate by unanimous vote:

"In an age of sometimes contentious confirmation proceedings for federal judgeships, the U.S. Senate voted unanimously in September to approve President Bush's nomination of Conrad.

"He was the rare nominee ... about whom no one had anything negative to say," said Roanoke lawyer William Rakes, a former member of the Board of Governors for the American Bar Association. Rakes spoke during the ceremony for a member of the bar association's committee on the federal judiciary who could not make the ceremony."

Judge Conrad was introduced at the ceremony by Virginia Supreme Court Justice Cynthia Kinser, and the oath was administered by Judge James C. Turk of the W.D. Va., who created the vacancy filled by Judge Conrad when he took senior status earlier this year.

Another article on the Missouri case

This report from begins: "The battle between municipal operations and state bans barring them from offering service hits the supreme court, as an unprecedented number of supporters create a new unified front in the fight to enter the market"

After the article is a free-for-all exchange of posts with information and disinformation about municipal networks.

The EDUCAUSE brief

Here is the link to the brief I filed for EDUCAUSE in the Missouri municipal telecom case.

General Assembly's website comes in at No. 8

According to this report, the Virginia General Assembly's online presence was ranked eighth-best in the nation.

State of the First Amendment survey results

Via Inter Alia, this report describes survey results measuring public attitudes about questions related to the First Amendment. For example, 46% thought the press has too much freedom, almost 70% thought "nation under God" does not violate the "separation of church and state" (and if the question was asked in the actual language of the establishment clause, I suspect the response would be more like 90%), and 44% said the media conglomerates influence the content of news reporting "a great deal."

NAACP opposes nomination of Claude Allen to Fourth Circuit

According to this story in the Richmond paper, the NAACP has strongly denounced the nomination of Claude Allen to serve on the U.S. Court of Appeals for the Fourth Circuit, citing among other things his ties to former U.S Sen. Jesse Helms of North Carolina.

The article also notes:

"Sens. Paul S. Sarbanes and Barbara A. Mikulski, Maryland Democrats, plan to testify Tuesday in opposition to the Virginian's nomination for a seat formerly held by a Maryland judge.

Their testifying will be unusual but not unprecedented for such a hearing, a congressional source said.

Sen. George Allen, R-Va., plans to testify in support of the nominee, who is not related to the senator. Virginia's senior senator, Republican John W. Warner, who also supports Claude Allen, will testify if his schedule permits, according to an aide.

Claude Allen is a former Virginia Cabinet secretary under then-Gov. Jim Gilmore, a Republican. White House counsel Alberto R. Gonzales has praised Allen as a "well-qualified and well-respected lawyer and public servant who will be an excellent judge."

But in a season of partisan rancor in the Senate over Bush's judge picks, leading Democratic senators may disagree sharply with Gonzales' remark.

A report yesterday by NARAL Pro-Choice America, an abortion-rights group, not only blasted Allen's stands but contended that with only about eight years of experience as a practicing attorney, he has 'perhaps the thinnest legal background of any appeals court nominee from this White House.'"

Murder conspiracy within the federal penitentiary?

According to this article in the Kingsport paper (registration required), two inmates at the federal prison in Lee County "were named in a three-count indictment that charged them with conspiracy to commit the murder of another inmate, assault with intent to murder the same inmate, and possession of a weapon in a federal prison."

No jurisdiction for class attack on property tax in Georgia

In Amos v. Glynn County Board of Tax Assessors, the Eleventh Circuit held that the Tax Injunction Act, 28 U.S.C. § 1341, deprived the District Court of subject-matter jurisdiction, in a case where the plaintiffs sought class relief against the way the County assessed real property taxes. The appeals court concluded that state law affords the plaintiffs "a ‘plain, speedy and efficient remedy.’”

I've wondered whether the Tax Injunction Act would have some effect on litigation over the landfill fee in Wise County, but then a landfill fee might not be considered a tax for the purposes of that Act - besides which, I'm not sure whether there is a "plain, speedy, and efficient" remedy for trying to recover fees that were collected illegally.

Some members of black alumni group call for reprimand of Coach Beamer

Some members of the Virginia Tech Black Alumni Network want football coach Frank Beamer to be reprimanded for slapping Ernest Wilford on the helmet during the Hokies' terrible defeat at the hands of the West Virginia Mountaineers, according to this report in the Roanoke paper, which says, among other things:

"But on Friday, several members of Tech's Black Alumni Network sent a letter to university President Charles Steger urging the administration to hold Beamer "to the same standard as any other university official."

"We cannot imagine that the university administration would remain silent if a professor struck a student in the classroom," said the letter from the group's ad hoc committee. "And the university should not remain silent when a coach assaults a player during a school-sanctioned sporting event."

Tech spokesman Larry Hincker, however, objected to the group's characterization of the slap as assault and called it "atrocious" to compare a football field and a classroom.

"We just don't think it's analogous to a classroom," said Hincker, adding that Wilford was covered in protective equipment. "Our position as of yesterday was that it was not an actionable offense, and I don't think that has changed today."

I'm not sure how many people who are not Tech alumni could name a single Tech employee other than Frank Beamer, who has probably brought more favorable publicity to the school than anyone else, ever, and is a good guy besides, and everyone with a clue at Virginia Tech knows both to be true.

Death sentence more likely to be executed in Virginia

According to this article in the Richmond paper, persons sentenced to death in Virginia are more likely to be put to death.

The article notes the following:

"From 1977 through 2001, some 136 prisoners were sent to the state's death row. As of the end of 2001, 83 of them - 61 percent - had been put to death. Since then, six more have been executed, and at least five more sent to death row.

There is no close second. Missouri executed 32 percent, and Texas and Delaware each executed 28 percent of their death-row inmates during the same period, according to an analysis of data from the U.S. Bureau of Justice Statistics.

Virginia has executed such a large percentage of its condemned inmates that its death row population went from more than 60 inmates to 27. It now has one of the smallest death rows in the country, and its inmates have been on death row an average of 2.8 years - the shortest stay of any state."

Western Virginia losing some seniority in the legislature

This article from the Richmond paper explains how Western Virginia will be losing some seniority in the General Assembly, with the retirement of three long-serving Roanoke area legislators.