Friday, November 21, 2003

Senate panel studies 4th Circuit nominee William Haynes

Via How Appealing, this article in the Richmond paper describes the Senate Judiciary committee hearing on the nomination of William J. "Jim" Haynes II to fill the position on the Fourth Circuit made vacant by the senior statute of Judge Emory Widener. The article says that both Virginia Senators Warner and Allen supported the nomination at the hearing.

Summary judgment for Wal-Mart on tort claims of accused shoplifter

In Hall v. Wal-Mart Stores East, Inc., Judge Jones granted the defendant's motion for summary judgment on the false imprisonment, malicious prosecution, and intentional infliction of emotional distress claims of the plaintiff, who swore that she had no intent to steal some azaleas that she failed to put back after discovering she did not have enough money to pay for them. The woman was at the store with her 4 children, and had won an acquital on the shoplifting charges. The Court concluded, among other things, that there was no dispute of fact as to the defendant's immunity defense under the statute, Va. Code Ann. § 18.2-105, which allows stores to detain suspected shoplifters when they have probable cause.

City councilman wins defamation case against private citizen

As reported here in the Richmond paper, a city councilman has won a jury award of compensatory and punitive damages against a private citizen who took out false newspaper ads against the councilman shortly before an election.

The article says in part:

"A Circuit Court jury yesterday ruled in favor of a Colonial Heights City Council member who sued a private citizen for libel in a case that may be a first for Virginia.

After about 4½ hours of deliberation in Chesterfield County Circuit Court, the seven-member jury awarded J. Chris Kollman III, a 26-year council member, $75,000 in compensatory damages and $125,000 in punitive damages. The suit was brought against Claude E. Jordan.

Kollman's lawyer, Thomas E. Albro, . . .said he thinks the libel suit filed by a public official against a private citizen is a first for Virginia."

Thursday, November 20, 2003

On the connection between Hokie football and the economic health of Southwest Virginia

It says here in the Cavalier Daily that "[f]or Virginians, the Hokies' presence in a viable football conference was said to be crucial to maintaining the economic health of Southwest Virginia." This may be the lamest article I've read in the CD since I was a student.

Unrelated to this, the Cavalier Daily itself has been in the news this week with plagiarism problems, as reported here (in the Virginia Tech paper), and here by the AP. This could be further evidence of the nefarious influence of the New York Times.

The NYT (registration required) also has some problems with Southwest Virginia. This Times story about old buildings says that one was found "in Mecklenburg County in southwest Virginia, about 150 miles from The Plains." (It's more like 200 miles from The Plains to Mecklenburg County, which is not in Southwest Virginia.)

Ron Meisburg nominated for NLRB seat

According to this announcement from the White House, "The President intends to nominate Ronald Edward Meisburg, of Virginia, to be a Member of the National Labor Relations Board for the remainder of a five-year term expiring August 27, 2008. He currently serves as an Attorney with Ogletree, Deakins, Nash, Smoak & Stewart, a Washington, D.C. based law firm. Mr. Meisburg previously served as a Partner with Heenan, Althen & Roles, LLP. Prior to this position, he served at the Department of Labor in the Office of the Solicitor of Labor. While at the Department, Mr. Meisburg served in the Division of Employee Benefits and went on to serve in the Division of Mine Safety and Health. He earned his bachelor's degree from Carson-Newman College and his J.D. from the University of Louisville."

Geez, Ron Meisburg - what a great and friendly guy he is. He and his old partners have treated me like the Duke of Earl in our few dealings over the years, for no particular reason other than that's how they do things. Reading this announcement makes me want to jump up from my chair and hoot and holler.

Virginia Court of Appeals upholds sanctions in divorce case under 8.01-271.1

In Vinson v. Vinson, the Virginia Court of Appeals in an opinion by Judge Frank, joined by Judge McClanahan and Senior Judge Coleman, upheld the award of sanctions in the amount of more than $20,000 under Va. Code 8.01-271.1 in a divorce case against the wife's lawyer, who failed to withdraw as soon as he should have where he had a conflict of interest as to the validity of a property settlement agreement he had written as to both the husband and the wife.

This is a very interesting opinion. First of all, it recognizes that the lawyer could take an interlocutory appeal on the award of sanctions against him, that since he had withdrawn and was no longer in any way a part of the case, the order was final and he could bring the appeal now rather than at the end of the divorce case. (There was some ambiguous discussion about whether the sanctions motion was or was not part of the divorce case at all, and what was the proper style of the appeal.)

Second, the Court upheld the merits of the sanction ruling. This is probably correct, but I wish it had been made plainer exactly what the lawyer did and when that was wrong. It seems almost like a malpractice claim disguised as a motion for sanctions. Apparently, after the husband file a motion for the lawyer to withdraw, everything that the lawyer did or said other than withdrawing was construed to violate section 8.01-271.1. I don't think that's quite right, but one key difference between the Virginia statute and the federal Rule 11 is that the Virginia law extends to oral as well as written representations (and the federal Rule 11 does not).

Finally, and perhaps most extraordinary, is the Court's affirmance of the amount of sanctions. The lawyer argued that the Court should not award more than the amount of the other side's actual attorneys' fees as a sanction. The appeals court said there was no such limit. If that's true, then I suspect the statute is possibly unconstitutional - in the manner of the contempt fines against the UMWA by the Circuit Court of Russell County, Virginia, that were thrown out by the U.S. Supreme Court in the famous case of International Union, UMWA v. Bagwell, 512 U.S. 821 (1991). (Probably the lawyer has waived this constitutional issue, since it was not discussed in the Court of Appeals' opinion, but maybe not - maybe he ought to petition the Virginia Supreme Court.) Usually, in sanctions litigation, the attorneys' fees alone are so high that making someone pay them is punishment enough, I would think.

Virginia Supreme Court grants appeal in Charles Riner case

As described here, the Virginia Supreme Court has decided to take an appeal in the murder case of Charles Riner, who was represented by Tom Scott and Roger Groot. As described here and here, Riner was convicted in Wise County Circuit Court of murdering his wife, stealing her rings, and burning the house down. The Virginia Court of Appeals opinion affirming Riner's conviction is here.

From Harrisonburg, Virginia all the way to Tacoma

In Atlantic Construction Fabrics, Inv. v. Metrochem, Inc., Judge Wilson granted a motion to transfer the case from the Harrisonburg division of the W.D. Va. to a federal court in Washington State.

Wise police chief wants to be able to alert businesses about crime via fax

According to this story in the Coalfield Progress, the police chief in Wise wants local businesses to have fax machines so he can send them reports about crimes that might affect them.

The Chief "said the police department is preparing to implement a program through which the department will alert area businesses to activities, such as counterfeiting, bad checks, scams and shoplifting, while those crimes are in progress in the area." Of course, e-mail would be cheaper and better than fax, but what do I know?

The Crime Commission's proposals on reforming the 21-day rule

Via VLW, the Roanoke Times has this story on the Crime Commission's proposal for reforming the 21-day final judgment rule, which currently limits the ability of convicted criminal defendants to come forward with evidence of their innocence more than 21 days after the final order in their criminal cases - a rule that was cited as one of the most unfair aspects of Virginia criminal procedure in the recent ACLU report calling for a death penalty moratorium in Virginia.

"Under the proposed law, convicted felons who discover new evidence of innocence can petition the Court of Appeals. If the appellate court finds the case might have merit, it will order the judge in the jurisdiction where the defendant was convicted to hold an evidentiary hearing on certain factual matters. The appellate court will have the final call on whether the conviction should stand."

So, it's not just special ed kids, it's also immigrants

This article from the NY Times (registration required), mostly critical of Virginia's SOL program and the federal No Child Left Behind program, relates that a rich school in suburban Richmond (Henrico County) did not make its numbers because of its immigrant population, mostly students who don't speak English.

Virginia Democrats and Republicans react to Massachusetts gay marriage opinion

This article in the Virginia Tech paper quotes Governor Warner and Lt. Governor Kaine, among others, on the issue of Virginia law and same-sex marriage, in the wake of the Massachusetts appeals court decision.

In this story from the Kingsport paper (registration required), Delegate Terry Kilgore declared that gay marriage would never be legal in Virginia: "Delegate Kilgore said it's high time for the majority of Americans to stand up and be counted when it comes to rolling back the agenda of the far left tide."

First times before the U.S. Supreme Court

This article is great, on the subject of lawyers describing their first arguments before the U.S. Supreme Court.

As I noted here six months ago, Florida lawyer Joe Klock is still my hero for his famous gaffes in the oral argument before the U.S. Supreme Court in the Bush v. Gore case, as recounted in this article ("Lawyer Klock 'not good with names'").

Wednesday, November 19, 2003

Which takes precedence, a city charter or general state law?

This article about the condemnation of the marina at Hopewell includes the following discussion about local vs. state law:

"According to Zevgolis, this is clearly spelled out in the Hopewell City Charter. Zevgolis described a city charter as a "mini constitution" which takes precedence over state law. Zevgolis said that the charter states that only the Port and Dock Commission can declare buildings over water as condemned and that the state law gives the building inspector the power to declare buildings condemned.
Carrie Cantrell, a spokeswoman for Attorney General Jerry Kilgore, said as far as she knew Virginia State Law always takes precedence over city charters or any other sort of local law."

Ms. Cantrell ought not be saying things like that. First of all, Va. Code § 15.2-100 says that the general provisions shall generally not be construed to alter charter rights, except when the legislature uses the magic words: "Except when otherwise expressly provided by the words, 'Notwithstanding any contrary provision of law, general or special,' or words of similar import, the provisions of this title shall not repeal, amend, impair or affect any power, right or privilege conferred on counties, cities and towns by charter." I think the AG opinions generally say the same thing. See, e.g., Hon. Edwin Wilmot, AG Opinion 99-080, 2000 WL 425333, *2 (March 8, 2000) ("A charter provision that establishes the powers of a local government is special legislation authorized by Article VII, § 2 of the Constitution of Virginia (1971), and will prevail over general law, absent an indication of legislative intent to the contrary, in the event of a conflict between the two."). "General laws are superseded by later charter provisions, which are themselves statutes, to the extent that there is a conflict." Com. v. Rose, 160 Va. 177, 180, 168 S.E. 356, 357 (1933).

Another horserace article on Gil Davis and other statewide contenders

The Richmond Times-Dispatch has this story on the roundup of canddates for statewide office in 2005, including Northern Virginia lawyer Gil Davis, who is or was at one time of counsel to the Copeland & Bieger firm in Abingdon, I guess for when he needed a place to hang his hat in Southwest Virginia.

Tuesday, November 18, 2003

Name change here at the firm

As of November 13, this firm was renamed "Elliott Lawson & Minor."

My long-time boss and partner and friend Kurt Pomrenke got an offer he couldn't refuse from King Pharmaceuticals.

So, my name moved up into the firm name, an event which I would not have thought likely when I was working for White Elliott & Bundy and there were 6 partners and 5 associates before my name on the letterhead.

Goofy article about the Fourth Circuit

This Baltimore Sun article seems to contain every stereotype (good or bad) ever made about the Fourth Circuit.

Here's an example of how this article strikes me as flawed. The article offers this summary of Fourth Circuit decisions:

"Many liberals, though, see the Fourth Circuit as akin to the administration's rubber stamp. It is, they assert, a court that tends to side with government against the individual and business against the employee and to embrace a hard line on terror suspects and civil rights.

The Fourth Circuit began attracting attention in the 1990s when it tried to overturn Miranda, the landmark 1966 Supreme Court ruling that requires the police to inform criminal suspects of their right to remain silent and to consult a lawyer.

In recent years it ruled that the Virginia Military Institute could remain all-male, struck down the Violence Against Women Act, said the Food and Drug Administration could not regulate nicotine as a drug, upheld the presence of the Confederate flag on some Virginia license plates and has agreed to hear fewer death penalty appeals than most other circuits."

Now, I know the Fourth Circuit often sides with "the government," but I'm pretty sure that the Fourth Circuit rejected the arguments offered by "the government" in the VMI, VAWA, and FDA cases, all three.

Regarding Clinton nominees, the article says:

"President Bill Clinton was hesitant, historians say, to nominate liberals for fear of looking weak on crime. Four of his nominees for the Fourth Circuit, all moderates, managed to win confirmation after contentious battles. Clinton slipped in a fifth, Roger L. Gregory, as the court's first black judge, through a "recess appointment" while Congress was out of session.

The current President Bush renominated Gregory for the Fourth Circuit - the last federal appeals court to integrate racially - and the Senate confirmed the nomination.

Three of Clinton's nominees on the court - Diana G. Motz, Robert B. King and M. Blane Michael - are the usual dissenters from conservative opinions."

Did Judges Motz, King, Traxler and Michael "win confirmation after contentious battles"? I never heard that there were contentious battles over any of these nominees. In fact, Judges Motz and Michael went through the process during a time when Democrats held the majority in the Senate, and there were no minority-party filibusters in those days.

Turmoil over proposed new law school in Nashville

The Tennessean has this report on one legislator's determined efforts to bring a law school to Tennessee State University in Nashville. She says it "having a law school would put TSU in the ranks of Vanderbilt and the University of Tennessee."

Budget-cutting through negative performance evaluations?

According to this story in the Roanoke paper, Roanoke police officers are claiming that the City is trying to save on performance pay by implementing a plan of giving bad evaluations.

On constitutional protection for personal lifestyles

This week, one of the books I was reading was an old volume from college called Patterns of American Legal Thought, a collection of essays by U.Va. law professor G. Edward White, published in 1978. Included among them is a law review article written by Professor White and then-Professor J. Harvie Wilkinson, III, reprinted from the Cornell Law Review, titled "Constitutional Protection for Personal Lifestyles."

It turned out to be timely, in light of this week's decision by the Supreme Judicial Court of Massachusetts in the gay marriage case.

The circumstances are much the same as in the Lawrence v. Texas case - if the standard of review is rational basis, can the judges say that continuing the law as it has been for centuries is not merely wrong but so wrong as to be irrational? I doubt it - outside of race discrimination, where the Constitution was specifically amended after a civil war to change the law of hundreds of years.

Roanoke woman sues Carilion hospital and two doctors for revealing she has HIV

The Roanoke Times reports here that a woman is suing a hospital and two doctors for wrongfully revealing that she has HIV.

Richmond reimplements no-trespass policy from Hicks case

According to this story in the Richmond paper, the no-trespass policy for housing authority properties is back in effect in Richmond, after the Supreme Court opinion from last term in the Hicks case did not conclude that the policy was unconstitutional, although constitutional issues remain.

Monday, November 17, 2003

10,000 hits

The visitors to this blog (since the Sitemeter was installed) are (as of this afternoon) more than 10,000. That seems like a lot, or a little, I'm not sure which - and only 2,948,000 less than How Appealing.

The tax protests of the satellite TV providers

I read today that DirecTV has sued Tennessee over the denial to satellite television of the same tax benefits bestowed on cable television, and the story included a link to this industry website, which includes a page protesting unfair taxation of satellite service in Virginia. Since the satellite providers don't pay franchise fees or pole attachment fees or right-of-way fees, I wonder whether this is all a bunch of hooey.

Federal judge to rule whether John Hinckley can visit parents at Kingsmill

According to this report in the Daily Press, a federal judge will decide whether would-be assassin John Hinckley can have an unsupervised visit with his parents at Kingsmill in Williamsburg.

The Dillon Rule and a new mayor for Richmond

This article in the Richmond paper describes the Dillon Rule of strict construction on the powers of local governments, against the background of the necessity for the City of Richmond to obtain approval from the General Assembly for the election of its mayor on an at-large basis.

Sunday, November 16, 2003

If a tree falls in the woods and no one hears it, what's the case worth anyway?

One of the things I've been reading about today is that some lawyer out in California sent a letter to a woman (who also happens to be a lawyer) threatening to sue over the comments written by others to one of the posts on her weblog. See, for example, these posts at CalBlog (the threatened blogger), Citizen Smash, Instapundit, and SoCalLawBlog, all of which have links and details.

Also, today I read this post by Curmudgeonly Clerk about what good are blogs anyhow, since many are soon abandoned and none are as widely read as the number of views for the worst show on television.

Putting these two together, I'm wondering what are the damages for defamation on a web log if no one in particular reads it (and everyone knows that). I had to wrestle with something similar in connection with a possible claim for defamation where the entire universe of publication was one guy, on whom the allegedly defamatory information had no effect whatsoever, other than to call back to my client and let them know what had happened. Fortunately, I won't be writing any briefs on the issue.

I also wonder, who thinks that they can threaten to sue a blogger for blogging without all the other bloggers finding out about it? Now I expect there's a few hundred or a few thousand bloggers who think that this lawyer who wrote the letter is, um, doing something they with which they disagree.

Maybe William Haynes should just move to Maryland?

This post from the presumably tanned, rested, and ready maestro of How Appealing details the latest on the two pending nominations to the U.S. Court of Appeals for the Fourth Circuit, Claude Allen and William Haynes, both of which have generated some heat because of whether the nominees reside (or don't reside).

(When was it first said of Richard Nixon that he was "tanned, rested, and ready"? 1968? 1988? 1992?)

Meth as part of the outlaw tradition of East Tennessee

The Knoxville paper has this article on the plague of methamphetamine trafficking in Eastern Tennessee, which it ties to the area's "outlaw tradition."

The nuts and bolts of the two simultaneous sniper trials at changed venues

This interesting article in the Washington Post describes the logistics of having the two sniper trials in Virginia Beach and Chesapeake.

One interesting fact of which I had no idea was that once there was a criminal trial moved from Fairfax County to Dickenson County, involving the collapse of a building at Bailey's Crossroads that killed 14 people.

For the sniper trials, the witnesses and evidence must be coordinated, and some of the material is being stored halfway in between Chesapeake and Virginia Beach.

In the courthouse, a "safe haven" has been established to allow the victim's families to view the proceedings with some level of privacy.

Chief Justice Rehnquist says it's easier to become president than to become Chief Justice

According to this AP report, in his speech at Williamsburg on Friday, Chief Justice Rehnquist discussed why fewer state court judges become Supreme Court justices these days, and how the U.S. Supreme Court differs from the high court in France (which has 110 members).

Sales tax avoidance as boon to Southwest Virginia

Oft-quoted ETSU economist Steb Hipple declares in this article in the Johnson City Press (registration required) that Northeast Tennessee loses $354 million per year in retail sales per year to Southwest Virginia because of the difference in the sales tax rates of Tennessee and Virginia.

(I've always wondered, if the sales tax makes such a difference, why aren't there better shopping opportunities on the Virginia side? Maybe there will be, with the continued development of Bristol's Exit 7 area.)

Sullivan County educators denounce No Child Left Behind

On the Tennessee side, this article ("Officials say No Child Left Behind sets schools up for failure") from the Kingsport paper (registration required) says that Sullivan County is sponsoring a resolution in favor of altering the federal No Child Left Behind standards, because county officials have concluded that those standards cannot possibly be met, particularly with respect to special education students.

Schapiro says Warner could stick it to Republicans with flat tax proposal

This week's Jeff Schapiro column says one way for Governor Warner to make history and put Virginia Republican legislators on the spot would be to propose a flat tax, in the manner favored by people like Steve Forbes.

Gil Davis contemplating run for lieutenant governor in 2004

Northern Virginia lawyer Gil Davis, best-known for representing Paula Jones (for a while) in her lawsuit against Bill Clinton - including arguing her case before the U.S. Supreme Court - is thinking about running again for statewide office, having unsuccessfully sought the Republican nomination for attorney general in the past, all according to this report, which recalls the following ad:

"The ad showed part of a black-and-white home video. Davis, the Fairfax attorney who represented Paula Jones in her suit against then-President Bill Clinton, was kicked back in a chair with a drink in hand, laughing and encouraging another of his female clients to pose for Playboy magazine."

VaCo joins ad campaign on tax reform

The Virginia Association of Counties and others will pay for advertisements to promote its views on tax reform in time for the upcoming General Assembly session, according to this story in the Daily Press.

Maine man told to sue AOL in Virginia

This article describes the dismissal in Maine of a lawsuit against AOL under Maine's anti-spam laws - the plaintiff intends to refile his suit in Virginia, seeking "$1,680 he says he is owed for the time he has spent dealing with unsolicited e-mails."

Bath County woman seeks new law after son killed at roadside car wash and bake sale

This article in the Richmond paper describes the efforts of a woman to obtain a new road safety law dealing with areas around temporary roadside events after her young son was killed on the road near a car wash and bake sale event.

More on the suit against Reciprocal of America

The Richmond Times-Dispatch has this story on the litigation surrounding the downfall of the Reciprocal of America and its related companies.

The article notes that "The collapse this year of insurance operations Crews organized and helped manage left thousands of policyholders - doctors, lawyers, hospitals and medical associations - without coverage."

Regarding the lawsuit, the article notes that "Virginia Insurance Commissioner Alfred W. Gross alleged a long history of concealed payments, fraudulent transactions, secret agreements designed to buffalo regulators, conspiracy, and breach of fiduciary duties."

More on the Orange County shale mine

The Washington Post has this story on the dismissal of a lawsuit in state court opposing a shale mine in Orange County, Virginia.

The article describes the background of the suit: "A diverse group of residents from the hamlet of Barboursville has been fighting Tennessee-based General Shale Brick since December 2001, saying the company's plan to mine shale on a 139-acre tract would harm the environment, violate black residents' civil rights and wreck Barboursville's tranquil lifestyle with trucks rumbling through. The group said county supervisors violated zoning law when they approved a permit for the mine in April 2002. . . . The initial lawsuit by 38 plaintiffs leveled 10 charges, including that black residents would be disproportionately affected by the new mine. The digging site is about 25 feet from the edge of Careytown, a black community founded by former slaves after the Civil War."

The issues decided by the Court included whether the trucking of the shale was an accessory use to the use of the property for mining shale:

"Orange County Circuit Court Chief Judge Daniel R. Bouton dismissed eight of the charges last year. He allowed two to go to trial: that the supervisors were arbitrary when they approved the plan and that the plan violates zoning law because it allows trucks going to and from the mine to drive through a portion of a tract zoned for homes. Mining is not allowed on residentially zoned land in Orange.

In his ruling Nov. 7, Bouton wrote that there was "no evidence that the board's action was unreasonable" or that it acted arbitrarily. He ruled that trucks carrying the shale do not violate zoning laws because they are "accessory" activities to the main work, which is done on the portion of the land zoned for agricultural use that allows mining.

The notion that thousands of dump truck trips per year were only an "accessory" to the real mining work seemed outrageous to opponents of the new mine."