Friday, December 05, 2003

Delegate Joe May ponders run for lieutenant governor in 2005

The Winchester paper describes here the designs of Delegate Joe May to run as a candidate for the Republican nomination for lieutenant governor in 2005.

Thursday, December 04, 2003

Keeping sodomy illegal in Virginia

The AP has this report on the recommendation of a legislative panel in Virginia to keep its anti-sodomy laws on the books.

The article notes: "The sodomy statute would not be the first unconstitutional law left on the books in Virginia. Crime Commission members also declined this week to recommend repealing laws prohibiting certain businesses from operating on Sundays and a ban on flag mutilation. Those laws were ruled unconstitutional in the 1980s."

Breaking down the numbers for protective orders in domestic relations cases in Virginia

The Richmond paper has this analysis of the frequency with which protective orders are entered in domestic relations cases in different parts of the Commonwealth: it says that in Southwest Virginia, such orders were entered at a rate of 8.43 per 1,000 people, one of the higher rates.

Magistrate Judge Sargent denies motion for forcible medication of federal inmate

In U.S. v. Evans, Magistrate Judge Pam Sargent of the W.D. Va. denied the motion of the federal government for the forcible medication of an inmate to make him competent to stand trial.

Judge Jones grants summary judgment in Title VII case

In Bishop v. Aerus, LLC, Judge Jones of the W.D. Va. granted summary judgment for the employer in a Title VII case where the plaintiff claimed sex discrimination, concluding in a lengthy discussion of the facts that the plaintiff had failed to create a question of fact as to whether the employer's explanations for the adverse employment actions were pretextual.

Prosecutors who defied senior judge offer apology to end contempt trial

The Roanoke Times has this article ("Pittsylvania prosecutors apologize for conduct," 12/4) on the conclusion of the trial of contempt charges against the Commonwealth's attorney for Pittsylvania County and his assistant, who bucked heads with a senior Circuit Court judge and told him what they thought of him. At the end, the special prosecutor is quoted as saying, "I learned as a young lawyer real fast that if you're going to take on a judge, you better get him the first time."

Rape suspect allowed to subpoena police officer's mental health records

According to this article in the Coalfield Progress, Judge John Kilgore has ruled that the Commonwealth is obliged to respond to a subpoena from defense counsel for a man accused of rape for mental health records from the state hospital in Marion about a town police officer who investigated the rape case. The defendant is represented by Stephanie Pease.

MEDex creditors suing Wellmont for letting MEDex go broke

As reported here ("MEDex Lab creditors suing Wellmont for $15 million," 12/4) by Matthew Lane in the Kingport paper (registration required), a Knoxville lawyer has filed a $15 million lawsuit in U.S. Bankruptcy Court in Knosxville against Welmont Health System and its officers claiming that the defendants were responsible for the bankruptcy of MEDex.

Choice not an echo

Former Roanoke mayor and practicing lawyer David Bowers is declaring he will run again for mayor, according to this report ("Former Mayor David Bowers says he'll launch re-election bid," 12/4) from the Roanoke paper, and he says the first thing he would do is fire the City Manager, Darlene Beacham, who has become a lighting rod for critics of government projects including the decision to ditch the old Victory Stadium and build a new multi-use facility. Bowers lost the last time to a Republican who came in first past the post when the Democrat vote was split in a three-way race. The article says the current mayor has indicated he will not seek re-election.

Wednesday, December 03, 2003

Woody on Word documents from the Virginia Supreme Court

In this week's edition from Woody's Office Watch, he includes the following paragraph:

"A WOW-MM reader pointed me to an entire collection of documents posted by one state's Supreme Court. I didn't see anything particularly damning in the documents, but they're strewn with names and email addresses of clerks, law firms, and individuals; file locations, server names, and so on - a few hours' worth of harvesting could lead to a credible blueprint of sections of this Supreme Court's word processing system."

I'm not naming names, but he could be talking about the Word versions of the opinions of the Virginia Supreme Court, available on the Virginia Judiciary website. The webmasters ought to get with the program and post the Supreme Court opinions in PDF format, as is now being done for some of the Virginia Court of Appeals opinions.

Commentary on the AG, the DOC, and FOIA

This editorial from the Norfolk paper is critical of the way the Department of Corrections responded to FOIA requests regarding the settlement in the Wallens Ridge wrongful death case.

Just one of them political deals

Published reports such as this one recounted the visit of some NASCAR drivers to the White House to meet with President Bush.

I don't follow NASCAR with the intensity of many of my friends, but I enjoy the drivers - as was the case recently when I saw Earnhardt, Jr., interviewed on the "Hot Seat" segment of "Sportscenter" and when he was asked the question, "which NASCAR driver would you most like to punch in the face?" his first reaction was "Awesome!" (He said he'd like to punch Matt Kenseth, but he figured that Kenseth would punch him back.) I went to elementary school for a while with one of the longtime NASCAR reporters, but I can't say that I've seen her on TV in some years (particularly since Fox Sports Net is not included in my cable package at the house).

I first read of the association between NASCAR and presidential politics in the nutty Hunter Thompson book, "Fear and Loathing: On the Campaign Trail '72," in which he describes a scene with Alabama Governor George Wallace shaking hands with his good friend "Dick Petty," and how none of the other Democrats had that kind of connection. (Has anything changed on that score?) I doubt that Petty ever endorsed Wallace, particularly since he ran as a Republican when he sought statewide office in North Carolina in 1996.

More on e-filing

This afternoon I was looking at the local rules in a district which has already implemented e-filing and electronic case management. This Findlaw article ("EFiling - The Future Is Now") reports on the changes wrought by e-filing, which is coming soon to the W.D. Va. and the E.D. Tenn. (and everywhere else, I suppose). The article links to this report on the state of e-filing in the federal courts.

On the rights of employees with histories of substance abuse

In Raytheon Co. v. Hernandez, the U.S. Supreme Court sided with the employer and reversed the Ninth Circuit in a case dealing with the application of the Americans with Disabilities Act to employees with histories of substance abuse.

As reported in this AP article ("Court Rules on Workplace Rights Issue," 12/2) by Gina Holland, the Court decided the case on narrower grounds than some employers had hoped.

Odd notes: (1) This is one of the cases that is included in the Supreme Court Fantasy League prognosticating contest, and I am happy to report that I picked it correctly, although I guessed the margin would be +5. I mention this since it may never happen again that any of my picks are correct.
(2) It is solely thanks to How Appealing that I have begun to pay attention to who is whom among the different major media reporters on the Supreme Court. The only one I would have known before I started reading How Appealing was David Savage from the LA Times, and that from his appearances at events that were shown on C-Span. The Bashman post to Savage's article on this case for the LA Times (registration required) is here.

More on the Virginia adultery case

This post from has commentary on the adultery case of the Luray lawyer.

Tuesday, December 02, 2003

Websites for high-profile criminal defense

This article ("Michael Jackson, Martha Stewart Take Cases Straight to the Net," 12/2) from ONLINE JOURNALISM REVIEW quotes Virginia blawger Ken "The Hammer" of CrimLaw and others regarding the use and misuse of websites for publicity when fighting high-profile criminal charges.

Another perspective on the litigation over the new Virginia abortion law

This article from the website of the Feminist Majority Foundation comments on the litigation over the constitutionality of Virginia's new partial-birth infanticide law.

The VoIP debate

The Post has this story ("Powell Opposes Internet Phone Regulation - Government Interference Could Stifle Developing Technology, FCC Chief Warns," 12/2) about the FCC's conference on Voice over Internet Protocol ("VoIP"), at which FCC Chairman Powell denounced state regulation, while state officials and others explained why they believe regulation is necessary.

On adultery in Virginia

The Washington Post has this report ("Va. Adultery Case Roils Divorce Industry - Conviction Draws Attention to Little-Used Law," 12/1) and a Virginia TV station has this report on a Virginia lawyer convicted of adultery. One of the effects is to dispel the notion that adultery is never prosecuted in Virginia and therefore cannot be a valid basis for assertion of the Fifth Amendment privilege against self-incriminating testimony.

Keeping score for 2004

I don't know why I never heard this before now, but it says here in this article ("Shifts in States May Give Bush Electoral Edge," 12/2) from the NY Times (registration required), that if Bush carries the same states in 2004 as in 2000, those states now have a net of 7 more electoral votes than they did in 2000. The author speculates that only 15 states are up for grabs in the 2004 election: Oregon, Nevada, Arizona, New Mexico, Iowa, Minnesota, Wisconsin, Michigan, Missouri, Ohio, Pennsylvania, West Virginia, New Hampshire, Maine and Florida.

State pays to settle inmate wrongful death suit in Wise County

According to this report ("State pays $350,000 in inmate's death," 12/2) in the Roanoke Times, the Commonwealth paid $350,000 to settle the claim filed in connection with the alleged wrongful death of an inmate at the Wallen's Ridge prison in Wise County. The newspaper obtained the details of the settlement by filing a FOIA request to the state's Department of Treasury. As one consequence of the incident on which the case was based, prison officials are no longer using the stun gun.

Monday, December 01, 2003

Ex-prison guard claims he was run off by harassment

As reported here ("Ex-correctional officer files $9 million lawsuit against state, NCC warden," 11/29) in the Kingsport paper (registration required) and here, a former Tennessee state prison guard has filed suit in the E.D. Tenn. claiming that he was forced to quit his job when co-workers began claiming that he was a homosexual and that he was going to have a sex change operation.

Jerry Falwell endorses Steve Baril for Virginia AG in 2005

According to this report ("Baril picks up endorsement from Falwell," 11/29) from the Richmond paper, the minister of the Thomas Road Baptist Church in Lynchburg, Jerry Falwell, has endorsed Steve Baril for Attorney General. Baril is a partner in the Williams Mullen firm and the son-in-law of the late former Governor John Dalton.

What happens with a do-nothing legislature

Today's ruling in the Colorado redistricting case shows what happens when the legislature failed time after time to amend the Colorado laws for congressional districts after the 2000 census gave the state an additional seat in Congress, with the result that a court imposed a plan for the 2002 election. In 2003, the state legislature finally passed a redistricting law with 7 not 6 districts, but today the Colorado Supreme Court ruled in this opinion that the legislature missed its chance to act on the 2000 census and will have to wait until the next go-round. The Court concluded "that when the General Assembly fails to provide a constitutional redistricting plan in the face of an upcoming election and courts are forced to step in, these judicially-created districts are just as binding and permanent as districts created by the General Assembly."

There is some appeal to the doctrine of "use it or lose it." I wonder what was going on in the Colorado legislature in 2001 and 2002.

Corrections officers with no constitutional right to associate with prisoners

In Akers v. McGinnis, the Sixth Circuit ruled that a state rule prohibiting corrections employees from non-work-related contact with inmates and probationers did not violate the employees' First Amendment association rights.

The Blogbook - A guide to legal blogging

I just discovered The Blogbook - A guide to legal blogging, via this Findlaw article ("The Blogbook: Open Source Lawyering"). Apparently, however, the Blogbook discovered me ere now, as SW Virginia law blog is on its list of legal blogs.

FERC takes on state law to allow Virginia power companies in regional transmission group

The Federal Energy Regulatory Commission (FERC) has ruled that the Virginia General Assembly and Virginia's State Corporation Commission had no right to prohibit the state's power companies, including Dominion and AEP, from joining the PJM regional transmission group for the Mid-Atlantic states - according to this report in the Richmond paper. Virginia lawmakers and regulators have expressed fear that allowing these companies to join a multi-state group would result in the loss of low rates for power to Virginia's consumers.

Now, you'd think that a state law affecting interstate power transmission would almost surely be unconstitutional as against the Interstate Commerce clause, somehow or another, but the state officials in this instance are arguing that what is unconstitutional is FERC's action.

Commentary on the challenge to the new Virginia abortion law

This story offers a "pro-life" view of the litigation challenging the new Virginia statute prohibiting "partial-birth infanticide."

Judge Moon rules on merits against county biosolid restrictions

The AP reports here ("Judge rules county ordinances illegal") that Judge Moon of the W.D. Va. has ruled that a county ordinance limiting the rights of farmers to use biosolids as fertilizer. Earlier, the Fourth Circuit affirmed Judge Moon's decision to grant a preliminary injunction for the plaintiffs in the case (so the latest ruling can't be a surprise).

AG Kilgore leading states in opposition to other states' environmental claims

According to this AP article ("A legal war between the states has erupted over the federal government's attempt to relax air pollution regulations," 12/1), Virginia Attorney General Jerry Kilgore is soliciting other states to join with Virginia as amici curiae in opposition to the litigation brought by other states to block the relaxation of federal rules under the Clean Air Act.

In Virginia, tobacco money goes to the right places

This story in the Richmond paper describes how the Commonwealth is relatively ahead of other states in targeting its windfall tobacco settlement money towards the economic revitalization of parts of the state that are affected by the decline of the tobacco industry, including Southwest Virginia.

In particular, the article cites the works of the Virginia Tobacco Commission. of which the commissioners include Senator Wampler, Delegate Kilgore, Senator Puckett, attorney Ronnie Montgomery, Delegate Joe Johnson, and a handful of others from Southwest Virginia, in addition to commissioners from Southside Virginia.

Hero of the Commonwealth's Cup

The Norfolk paper had this profile ("The strong, silent type, Cavaliers’ Miller lets his stats do the yakking," 11/28) on Southwest Virginia's own Heath Miller, the U.Va. tight end who was the star of the Virginia offense in this Saturday's victory (Richmond Times-Dispatch, "Hoot for 'Hoos," 11/20) over Virginia Tech.

What a great day, that game was. I told my wife after the game that when Miller caught the pass for the first down on the fake field goal in the fourth quarter, I was so happy I just about cried.

Commentary on latest tax reform study commission

The Norfolk paper has this commentary ("Do-nothing commission bad omen for reform," 12/1) on the failed legislative commission, which quit last week declaring that it was unable to reach an agreement on what to do about tax reform for Virginia.

In the Washington Post, VCU's Professor Holsworth opines here ("Gov. Cautious Takes A Leap," 11/30) that Governor Warner's new tax plans is a rare display of bravado on his part.

After 40 years, family wants convicted murderer released

The Fredericksburg paper has this account ("Killer's relatives have overcome their shame and fear. Now they want their brother home." 12/1) of the efforts to obtain the release of a Virginia inmate convicted almost 40 years ago of killing two policeman. The inmate is now suffering from liver cancer and has been denied parole 25 times.

Selling Christmas trees from Southwest Virginia

This article ("End of drought improves quality of Christmas trees," 12/1) tells about a fellow who grows Christmas trees around Whitetop and sells them in South Carolina.