Wednesday, November 26, 2003

Virginia lawyer accused of trying to launder stolen money through casino

The Philadelphia Inquirer has this story which begins, "A lawyer on the run from allegations that he stole more than $436,000 from a Virginia law firm has been charged with laundering part of the loot through the Trump Taj Mahal casino." The article says the lawyer was from Arlington.

Different kind of interview with Jerry Kilgore

Here is a somewhat offbeat interview with Attorney General Jerry Kilgore, in which he says, among other things, that "99.9 percent of the time [he and Governor Warner are] on the same page."

It reminds me somehow of a tape recording I heard in the summer of 1985 (as part of Professor Sabato's Campaigns and Elections class), of a child interviewing Senator John Warner. She asked him what was his favorite color, and whether he had met any famous people since he became a senator.

Tuesday, November 25, 2003

More on Joe Wolfe's U.S. Supreme Court case involving the Privacy Act

This Findlaw column ("The Supreme Court Considers Whether a Privacy Act Plaintiff Can Recover $1000 Even Without Proof of Damages") is about a case brought by Joe Wolfe in the W.D. Va. that has filtered its way up to the U.S. Supreme Court. Here's an earlier post about the case. The Fourth Circuit opinion is here.

The Findlaw author concludes that "even if these plaintiffs lose, future plaintiffs should win, even if they cannot prove damages. That is because privacy is valuable in itself, even when actual damages cannot be proven."

Why should towns own their own fiber networks

Not that I need any convincing, but here is Professor Lessig's explanation of why towns should have their own advanced fiber networks - and not once does he mention BVU OptiNet.

What he says in part is this: "If a traditional network provider owned an AFN in a particular area, that network provider, acting rationally, would charge customers a monopoly price, or restrict service to get its monopoly benefit. But if the customer owned the network, then the customer could get the same access at a much lower price and be free of use restrictions. McAdams is pushing - and Burlington and other cities are actually deploying - customer-owned AFNs."

Rating the Virginia Democrats' website

The Democratic Party in Virginia has this new website, which according to this review is better than it was but still lacking in the ways to count to the people who who websites.

So much for a good plan

I went to this afternoon's meeting of the Bristol, Virginia, bar, took two associates with me, but got elected anyhow as the new president. At the last meeting, I was selected to represent this area on the board of the Southwest Virginia Legal Aid Society. Previously, I would have expected that only those who were absent from the bar meetings were selected to such posts.

A few years ago, the bar president was a good guy who before he went to law school had been one of my elementary school teachers in Abingdon. A photocopy of his picture from my school yearbook, c. 1976, was made and posted in the clerk's office, with the message, "Should this man be president of the Bristol Bar?" He had sort of a Doug Henning haircut and mustache in those days, now his hair is more light than dark and there is not so much of it. Eventually, he discovered the poster and took it down, wondering how long it had been there and how many people saw it.

Probably I should start checking the boards where things are posted in the clerk's office.

The Ntelos bankruptcy from the shareholder point of view

The Roanoke Times has this story from the perspective of shareholders in the Ntelos telecommunications firm, which involved some independent telephone companies that had been successful for a long time, then merged to form Ntelos, got involved in some fancy deals with some fancy borrowing, and went into Chapter 11. The article quotes one person as saying, "They took a 100-year-old phone company and ground it to nothing."

Malvo picked the wrong state for murder

This AP story says that sniper John Muhammad picked the wrong state in which to commit capital murder, because in Virginia, death sentences get carried out, more often than not.

More on the case challenging the new Virginia abortion law

The AP had this story and the Richmond paper had this story on the arguments in the hearing on the plaintiffs' motion for summary judgment before Judge Richard Williams yesterday in the case challenging the constitutionality of the new Virginia partial-birth infanticide law.

More on the Charles Riner appeal

O'Donna Ramsey has this article in the Coalfield Progress on the Supreme Court's decision to grant the petition for appeal in the Charles Riner murder case from Wise County.

Counterfeiters nabbed in Lee County trying to pass bogus $5 bills

According to this story by Walter Littrell in the Kingsport paper (registration required), three Lee County residents have been arrested for trying to pass counterfeit $5 bills at convenience stores.

In TN, accident victim sues rescuers who left him at scene thinking he was dead

The Kingsport paper (registration required) has this story about the Hawkins County man who was left at an accident scene last year for almost two hours because the emergency personnel thought he was dead. The plaintiff is seeking $5 million.

The article notes:

"The accident occurred on Nov. 24, 2002, about 5:30 a.m. when Rollins' 1984 Chevrolet pickup left Caney Valley Road at a curve near the Gene Derrick Road intersection and struck several trees.

According to reports, the Stanley Valley Volunteer Fire Department was first to arrive on the scene. Firefighters reportedly checked for a pulse on Winegar and found none.

Church Hill EMS arrived next, and a paramedic also reportedly checked for Winegar's pulse and found none.

Stanley Valley VFD Lt. Charles Thacker told the Times-News last year that Winegar was lying on the hood of the pickup partially through the windshield with a sheet over him while an investigation of the accident was under way. The Hawkins County Sheriff's Department and Tennessee Highway Patrol also responded to the accident.

Thacker said about 7 a.m. he noticed Winegar moving under the sheet. Hawkins County Central Dispatch records show that at 7:17 a.m. Winegar was on his way to Holston Valley Medical Center in Kingsport."

Monday, November 24, 2003

Warner proposes, his opposition opposes

A tenfold increase in the cigarette tax, a one cent increase in the sales tax to 5.5 %, and higher taxes on "rich" people - that's what Governor Warner proposed today, as written here by the AP, and here by the Washington Post. The web page for the Governor's plan is here.

Summary judgment affirmed on Title VII claims of former ATF agent

In Clarke v. O'Neil, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams, Gregory, and Shedd affirmed this decision by Judge Jones of the W.D. Va. granting summary judgment on the Title VII claims of a former employee of the federal Bureau of Alcohol, Tobacco, and Firearms.

Big telephone companies opposed to new service requirements from SCC

The Richmond paper has this article on the opposition of the big telephone companies in Virginia to new service standards that are being imposed by the State Corporation Commission on telephone service providers with more than 20,000 lines.

On Democrats campaigning for president in Virginia

The Washington Post has this article on Democrats campaigning in Virginia in advance of next February's primary, which seems really weird, so weird in fact that the article mentioned that union activists in Southwest Virginia was part of the focus of one candidate.

Bad to use the N word, even metaphorically

Via BOTW, according to this story in Friday's Cavalier Daily, President Casteen at the University of Virginia has denounced the statement of a University Medical Center employee, who at a recent staff meeting declared that the use of the term "Redskins" was likely as insulting to Native Americans as another racial term would be to African-Americans. A protest organizer explained, "It doesn't really matter in what context this word was used."

Summary judgment hearing in E.D. Va. suit over new Virginia abortion law

The Richmond paper reports here on today's summary judgment hearing before Judge Richard Williams of the E.D. Va. on the constitutional validity of the new Virginia law prohibiting partial-birth "infanticide."

Sunday, November 23, 2003

Now a warning?

Now that the elections are past, I discover this post, which suggests it would be illegal for a well-heeled blog in Virginia to advocate (or oppose) a local candidate for office without a disclosure to the campaign finance records people.

It is fortunate in this one instance that I never paid anything for this blog, unless you count the $45 hooded sweatshirt.

Ex-car salesman out on bond tries swindling eBay customers

As reported here, a former car salesman convicted of conspiracy to commit bank fraud simplified the task of an E.D. Va. judge in fixing his sentence, after the Court learned that the defendant had defrauded customers over eBay while he was out on bound awaiting sentence - he got the maximum.

Who is the most powerful person in state government?

This article in the Virginian-Pilot says that the coming showdown between Governor Warner and Speaker Howell over funding Virginia government will determine who is "the most powerful person in state government."

This article in the Washington Post tries forecast what Governor Warner will propose on Monday morning - and notes that he "will not attempt the politically unpopular task of imposing the sales tax on services offered by lawyers, accountants, barbers or dry cleaners." More likely targets for new revenue include increased income taxes, increased cigarette taxes, increased sales tax, and increased corporate taxes.

This article on the budget in the Daily Press quotes Senator Wampler as saying that "we've already reduced spending by some $6 billion, so $1 billion on top of that really gets into the core services and affects the quality."
The Post article notes that "Democratic and Republican lawmakers, lobbyists and members of Warner's administration predict that the governor's proposals could precipitate an all-out war in the Republican-controlled General Assembly early next year" and that some Republicans "believe that standing against tax increases is the very essence of Virginia's Republican Party."

On campus speech in Knoxville and the perils of e-mail

Bill Hobbs has this post about "the hate-speech scandal at the University of Tennessee." The UT College Republicans site has a collection of links to news coverage of the story. This Daily Beacon story outlines what it is about.

What happened, among other things, is that another fellow has gotten into trouble for sending out a stupid e-mail, which got sent inadvertently to and read by a whistleblower, who was no longer even a member of the group to which the e-mails were directed but his address was still on the list. Apart from the speech story, this is a story about perils of e-mail.

Questions about retrying the D-Day fundraiser case?

Via CrimLaw, I see that last week the Roanoke Times reported here that federal prosecutors in the W.D. Va. were undecided whether to reprosecute the fraud in fundraising case related to the National D-Day monument in Bedford.

Yesterday, the Lynchburg paper likewise had this story that on the one-year anniversary of the indictment, the defendant Richard Burrow wants closure.

More on the Haynes nomination

On Friday, the Paper Chase had this post about the nomination of William J. Haynes, II, to the Fourth Circuit, noting that he "has been criticized by Democrats for being partly responsible for several controversial Bush administration policies, including the indefinite detention of some US citizens as "enemy combatants" without trial, the refusal to designate prisoners held at Guantanamo Naval Base in Cuba as POWs under the Geneva Conventions, and the Pentagon's military tribunal plan."

Water discharge from new gas pipeline sinks farm land?

The Roanoke Times has this story on a farmer who claims that water discharging from a gas line created a sinkhole on his property in Wythe County.

More on coalbed methane in Virginia and West Virginia

Rory Perry has this post on WV law regarding who owns coalbed methane, and asking if I know the status of the Virginia Supreme Court case. His post links to the new West Virginia Supreme Court opinion, which declares that "[i]n the absence of specific language to the contrary or other indicia of the parties' intent, an oil and gas lease does not give the oil and gas lessee the right to drill into the lessor's coal seams to produce coalbed methane gas." In its discussion, the WV court observed: "There is a great temptation in this case, urged on us by both sides, to wave a wand and declare coalbed methane to be either “coal” or “gas.” The logic of either position is facially seductive; “coalbed methane” is indeed “methane” in that both have the same chemical composition; but “coalbed methane” is also intimately bound to the coal, which must be disturbed if coalbed methane is to be produced in paying quantities. . . . But the precise question we must answer in this opinion is not whether coalbed methane, for all purposes and in all cases, is “coal” or is “gas.” The specific question we must answer is whether a gas lease executed in 1986, before the widespread commercial production of coalbed methane in West Virginia, signed by a lessor who owned the land, coal, oil and gas, . . . conveyed to the oil and gas lessee the right to develop the coalbed methane, absent any specific language on the issue."

I don't know any more about the pending Virginia case than what's online. The case was fully briefed as of August, according to the Supreme Court's case information site, and it apparently was not among the September cases decided in October, or the cases argued in October, so I'm guessing it will be argued and decided next year, if there is (or has been) no settlement.

The assignments of error in the Virginia case are these:

1. The Trial Court erred in finding that, under Virginia law, the grant of coal rights does not include coalbed methane ("CBM") absent an express grant of CBM.
2. The Trial Court erred in failing to adopt the plain and common meaning of the term "coal" in the 19th century as presented in the defendant's uncontested evidence of such definitions that describe coal as a heterogeneous substance that includes gas, a meaning that was also supported by the defendant's uncontested evidence of the current meaning of the term "coal" as a generic term with constituent parts that vary greatly.
3. In the alternative, the Trial Court erred in failing to acknowledge the ambiguity in the term "coal" contained in the severance deeds at issue in this case, finding instead that the term unambiguously did not include CBM.
4. The Trial Court considered evidence outside the record on the issue of the meaning of the term "coal" as used in the 19th century.
5. Having failed to either find ambiguity in the severance deeds or to adopt the common meaning of the term "coal" as used in the 19th century and as supported by current expert testimony, the Trial Court erred in failing to apply the proper rules of construction that should be applied to the severance deeds, finding instead that the grantors retained an interest in CBM when they could not beneficially use or enjoy the estate without trespassing on the coal owner's estate; and the coal owner could not beneficially use or enjoy the coal estate without trespassing on the purportedly retained estate of the grantor in the CBM. To do so, the Trial Court erroneously relies on a "common law" right of the coal owner to release CBM in connection with its coal operations.
6. The Trial Court erred in adopting a simplistic construction of the severance deeds finding that the grantors on these severance deeds intended only to convey the solid core of the coal and none of its associated volatile components such as CBM. Specifically, the Trial Court held that "the only finding that would allow the Court to rule in favor of the coal owners is that the CBM is a constituent of the coal itself." In doing so, the Trial Court disregarded the law of Virginia on mineral rights, that mineral estates may include non-specified elements when those elements are substantially connected with or integrally a part of the granted estate. Here, CBM is substantially connected with coal and an integral part of the in situ coal.
7. The Trial Court erred in construing the severance deeds to find that the grantors retained an interest in CBM when the grantors could not beneficially use or enjoy the estate without trespassing on the coal owner's estate; and the coal owner could not beneficially use or enjoy the coal estate without trespassing on the purportedly retained estate of the grantor in the CBM.

Exclusion of expert testimony on child molesters affirmed

This post from Blog 702 discusses the unpublished opinion by the Fourth Circuit in U.S. v. Fitzgerald, a per curiam opinion for the panel of Judges Michael, Traxler, and King, which "upheld the exclusion of testimony from an FBI forensic psychologist, to the effect that child molesters commonly begin with innocuous behavior designed to gain the child's trust and later escalate to borderline behavior designed to test the child's receptivity," in a case "where a Junior ROTC instructor allegedly made sexual advances toward teenage girls in the JROTC program."

The opinion also deals with the admisssibility under Rule 413 of evidence about prior acts of sexual misconduct. "Evidence offered under Rule 413 must satisfy three elements: (1) the defendant must be accused of an offense of sexual assault as
defined by Rule 413(d); (2) the evidence must pertain to the defendant’s commission of another sexual assault offense; (3) and the evidence must be relevant," the Court explained, and "[i]n applying the second element of Rule 413, the court must determine whether a reasonable jury could conclude that the defendant committed a prior sexual assault offense."

Judge Traxler wrote a concurring opinion, saying basically that under the abuse of discretion standard, he was bound to agree with the exclusion of the government's expert, but "[i]f there had been a firmer foundation for this testimony, my vote would have been different."

Ex-supervisor wants 39 felony charges dismissed on improper venue

On Friday, the Roanoke Times reports here that the former member of the Board of Supervisors in Bedford County is seeking dismissal of 39 of the 82 felony charges dismissed because the alleged acts were committed in another county.

One day's take on gay marriage

Howard Bashman has a dozen or more newspaper articles in this one post on reaction and developments across the country following last week's decision by the Massachusetts Supreme Judicial Court in the gay marriage case.