Friday, December 12, 2003

Proof positive that nobody at the Virginia Supreme Court reads this blog

This week in WOW 8.50, Woody says:

"That state Supreme Court I told you about last week still has documents on the Web that are filled with names and file locations and all sorts of detailed information about the Court's data processing operations. (Those of you who wrote on behalf of other Supreme Courts - nope, you folks don't work for the one I was talking about.)

This week, I was stunned to discover even more detailed information posted in docs related to the Department of Homeland Security. (The Dept of Homeland Security itself,, doesn't appear to have any Word docs on its site. Bravo!) More about that in a moment.

The point of all of this: don't post Word documents on the Web. Don't do it. Even with the best intentions, using the latest tools, you or one of your co-workers will eventually slip up and stick something out there that you don't want to be public knowledge. Any kid with a copy of Word can see an eyeful."

I'm still guessing he'stalking about the Virginia Supreme Court. If I could figure out how to send an e-mail to someone who has anything to do with the Virginia Judiciary website, I would issue them a challenge to fix this problem by January. Probably a solution is already in the works without agitation from me -- the Court of Appeals switched over to PDF in September.

First U.S. spam indictments under new Virginia law

This AP article, this other AP article, this article ("Book'em, Jerry," 12/12/03) from the Washington Post, this article ("Two face 20 years in spam probe," 12/12/03) from the Daily Press, this article ("Spammer suspect arrested in N.C.," 12/12) from the Baltimore Sun, and this article ("Felony spam charges filed," updated 12/12/03) from USA Today, and this story ("Virginia Hits Spammers With Felony Charges," 12/11/03) from, this story on, and this story from the Richmond paper ("2 men charged under spam law," 12/12/03), discuss the nation's first spam indictments and arrests, involving charges out of Loudoun County, Virginia under the new Virginia spam law against two men from North Carolina.

Sounds like a story written by Harry Caudill

Via, the Louisville Courier-Journal has this wild article about suspected wrongdoing by a judge in Eastern Kentucky, with allegations including improper hiring of temporary employees, improper relationships with women, improper deals with lawyers, and I don't know what all else.

Thursday, December 11, 2003

Settlement conferences under Rule 1:19

I heard something the other day about the possibility of the referral of state-court civil cases to judges for settlement conferences, and this week a form pops up on the Virginia judiciary web page for settlement conferences under Rule 1:19, so I guess there is such a thing, maybe I'll have to ask for one. This sounds too good to be true, it sounds like getting sitting or retired judges to mediate cases for free, so we'll have to unravel the fine print.

Reverse discrimination in refusing to plea bargain

In Orbe v. True, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams and Traxler and Senior Judge Hamilton affirmed the denial of a petition for habeas corpus in a death penalty case out of Virginia. One of the issues raised was the prosecutor's use of race - the claim was that the prosecutor discriminated against the petitioner in plea bargaining because the petitioner was white. Specifically, the petitioner's trial counsel testified that the prosecutor "told [him] that she could not agree to give a white man (Mr. Orbe) a life sentence when she had just asked for and obtained a death sentence for a black man (Daryl Atkins) in an unrelated capital murder."

Judge Jones considers class certification in Wise County landfill fee case

The Coalfield Progress reports here ("Judge to rule later on whether federal court will hear case, 12/11) on the oral arguments before Judge Jones of the W.D. Va. on the issue of whether the Court should certify a class action for the claims of Wise County residents seeking refunds of the Wise County landfill fee which the Virginia Supreme Court declared to be unconstitutional.

Del. Marshall to propose Virginia Defense of Marriage Act

Via VLW, the Washington Times reports here ("Bill would oppose same-sex unions," 12/11/03) that Delegate Robert Marshall from Northern Virginia will propose a law that would bar Virginia from recognizing same-sex civil unions from other states.

Oops, legislators will support Amherst judge after all

Via VLW, the Lynchburg paper is now reporting here ("Judge receives support," 12/11) that area legislators will support the reappointment of Judge Janow of the Juvenile & Domestic Relations District Court in Amherst County.

Wednesday, December 10, 2003

Political speech versus nude dancing

This post from Ninomania notes once again the incongruity that political speech can be limited but few limits are allowed on nude dancing. The post cites Judge Bork, who as I once quoted here, said much the same thing comparing school prayer and nude dancing. Based on the Fourth Circuit's recent decision in the Charlottesville middle school case, the dancers don't have to be nude, they could wear National Rifle Association t-shirts and still be protected, but the government can stop them from buying ads saying their Congressman is soft on gun control.

1 million sheets of paper

According to this story about the discovery disputes in the Linux copyright case against IBM, one of IBM's complaints was that the plaintiff produced some requested code "that had been printed on 1 million sheets of paper." The plaintiff responded, "If a company wants code, it's the other party's decision to provide that any way they feel like providing that." It sounds to me like one side or both are cruising for a bruising in that case, just over the discovery.

Not long ago, a lawyer on the Tennessee filed a motion to compel on me, after I objected to all 4 of his interrogatories. I sent him a brief in opposition to the motion. He read the brief then we talked and he said, more or less, "We don't get discovery objections in state court in TennesseeI didn't know your objections were based on the law. I thought you were just being a jerk." I said, "those were 4 lousy interrogatories."

Court can't modify contract incorporated into order

In Smith v. Smith, the Virginia Court of Appeals in an opinion by Judge Bumgardner, joined by Judges Annunziata and Frank, reversed the trial court's decision to modify the ex-husband's support obligations, where the parties had reached an agreement on support and the agreement was incorporated into the Court's order.

The appeals court said the "merger" of the contract into the circuit court's order does not somehow empower the circuit court to modify the terms of the deal.

What happened in that campaign finance case?

From the Supreme Court's opinion on the campaign finance laws, here is what the 298 pages contain:

STEVENS and O'CONNOR, JJ., delivered the opinion of the Court with respect to BCRA Titles I and II, in which SOUTER, GINSBURG, and BREYER, JJ., joined. REHNQUIST, C. J., delivered the opinion of the Court with respect to BCRA Titles III and IV, in which O'CONNOR, SCALIA, KENNEDY, and SOUTER, JJ., joined, in which STEVENS, GINSBURG, and BREYER, JJ., joined except with respect to BCRA §305, and in which THOMAS, J., joined with respect to BCRA §§304, 305, 307, 316, 319, and 403(b). BREYER, J., delivered the opinion of the Court with respect to BCRA Title V, in which STEVENS, O'CONNOR, SOUTER, and GINSBURG, JJ., joined. SCALIA, J., filed an opinion concurring with respect to BCRA Titles III and IV, dissenting with respect to BCRA Titles I and V, and concurring in the judgment in part and dissenting in part with respect to BCRA Title II. THOMAS, J., filed an opinion concurring with respect to BCRA Titles III and IV, except for BCRA §§311 and 318, concurring in the result with respect to BCRA §318, concurring in the judgment in part and dissenting in part with respect to BCRA Title II, and dissenting with respect to BCRA Titles I, V, and §311, in which opinion SCALIA, J., joined as to Parts I, IIA, and IIB. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part with respect to BCRA Titles I and II, in which REHNQUIST, C. J., joined, in which SCALIA, J., joined except to the extent the opinion upholds new FECA §323(e) and BCRA §202, and in which THOMAS, J., joined with respect to BCRA §213. REHNQUIST, C. J., filed an opinion dissenting with respect to BCRA Titles I and V, in which SCALIA and KENNEDY, JJ., joined. STEVENS, J., filed an opinion dissenting with respect to BCRA §305, in which GINSBURG and BREYER, JJ., joined.

I don't know whether I'll ever get around to reading the opinions, or even trying to count them.

Maryland down, Carolina next

The Daily Press reports here ()"Va. may be targeted in pollution suit ," 12/10) that the attorney general for North Carolina is demanding that several states, including Virginia, do something about the pollution from their power plants.

Tuesday, December 09, 2003

Judge Turk overruled on constitutionality of the RLUIPA

In Madison v. Riter, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judges Michael and Duncan rejected Judge Turk's ruling that the federal Religious Land Use and Institutionalized Persons Act was unconstitutional as a violation of the Establishment Clause, in its requirements that prisons accommodate the religious beliefs of inmates.

The Roanoke Times has this article ("Appeals court backs inmate's religion rights," 12/9) about the decision.

Poll says Virginians favor cigarette tax

The AP says here that 69% of Virginians favor an increased tax on cigarettes. I doubt that would be true out here in the hills, where none of us are healthy (but we are not as unhealthy as Tennessee, which is in the bottom 5 with Mississippi and Arkansas).

Take that, you Marylanders

As reported here by Reuters, here by the AP, here by the Maryland Gazette newspapers, and here by the Washington Post, the Supreme Court has ruled by a 7-2 vote in Virginia v. Maryland for Virginia is the winner and Maryland is the loser in a dispute over the boundary along the Potomac River. (What else do you need to know about a case like that? Unfortunately, in the last Virginia v. Maryland matchup, Maryland won by a wider margin, 27-17.)

This continues the serious roll of cases in which Virginia, AG Kilgore, and his solicitor general, Mr. Hurd, have won before the United States Supreme Court, going back to last year with the cross-burning and trespassing cases.

On self-defense in Virginia

The Norfolk paper had this feature article ("Some crime victims fight back, but experts are wary," 12/8) on crime victims who fight back, including some discussion of the law of self-defense in Virginia.

Big Stone Gap annexation shot down for lack of money

After the Town of Big Stone Gap and Wise County each spent roughly $400,000 fighting over the town's annexation effort, the three-judge panel ruled that both the town and the county were too poor for the annexation to work, and therefore sided with the County, according to this report ("Big Stone Gap annex try nixed," 12/8/03) in the Bristol paper.

Ignorant Grinch of a law school dean

From's daily newswire, this story of the dean at the Indiana University law school who put up then took down a decorated Christmas tree at the law school omits any reference to the U.S. Supreme Court's decision in Allegheny County v. Greater Pittsburgh ACLU, that a Christmas tree display is secular enough to avoid any establishment clause issues, noting that "The Christmas tree, unlike the menorah, is not itself a religious symbol. Although Christmas trees once carried religious connotations, today they typify the secular celebration of Christmas."

Perhaps Marcia Oddi of Indiana Law Blog will add details to this story.

Amherst County JD&R judge one of 4 scrutinized by legislators

The Lynchburg paper has this article ("Judge may not maintain position," 12/9) one of 4 judges up for reappointment this term who are facing some opposition - the article is about a juvenile and domestic relations district court judge sitting in Amherst County. Earlier this week, Virginia Lawyers Weekly also listed as being on the hot seat Judges Janow from Amherst, Circuit Judge William Andrews from the Hampton area, J&DR District Judge Woodrow Lewis from Virginia Beach, and GDC Judge Robert Giammitorio from Alexandria.

Evidently, Judge Joe Tate from Smyth County here in this district passed muster without objection, which is surely a good thing. Judge Tate is an excellent, good-natured judge and having appeared before him is one reason why I have to laugh at the talk of requiring district court judges to work a 40 hour week. If Judge Tate can squeeze in under 40 hours some weeks (and I don't know that ever happens), more power to him, the Commonwealth is still getting its money's worth from him.

After 13 months in jail, DNA springs murder defendant

The Roanoke paper has this account ("Strength of evidence against suspect in slaying in doubt," 12/9) of a murder defendant in Franklin County who has held in jail for 13 months but released when the DNA evidence came back as being that of someone else.

Monday, December 08, 2003

Loose lips sink ships

Via a faithful reader, this story ("Purcellville Council To Vote On Employee Gag Order," 12/4) from the Leesburg paper says one Virginia town is weighing a new policy whereby no Town employees would be allowed to talk to reporters until after next May's municipal elections.

Most of the article involved quotes from local government officials and lawyers, all scratching their heads and saying, no, we've never heard of anything quite like that.

Why I use CaseMap

This article ("Complex Litigation for Small Firms and Solo Lawyers") talks about different ways of handling complex cases, including the use of programs like CaseMap.

The first time I used a database in a case was when my old guru Jack White had discovered the FileMaker program, and we made up some records for the document production in a case involving what seemed like a bunch of documents to me. The other side produced a bunch of business records in various file folders. When we started asking questions about particular documents, the other side couldn't find them, so I looked them up in my homemade database and told them where we had seen them in their files. Sometime later I had a case in federal court that went on for about 6 years. It was good to have a fact database to come back to whenever I had to actually know something about the case.

U.Va. logo cannot be banned in Virginia's public schools

In Newsom v. Albemarle County School Board, the Fourth Circuit in an opinion by Senior Judge Hamilton joined by Judges Williams and Shedd reversed the denial by Judge Moon of the W.D. Va. of the plaintiff middle school student's motion for a preliminary injunction against the enforcement of his school's dress code as it prohibited messages on clothing that relate to weapons. The plaintiff wore an NRA t-shirt to school, and was told at one point he ought not to wear it.

Beginning its discussion, the Court noted that the consideration of irreparable harm in this case was intermingled with the likelihood of success on the merits. The student claimed the dress code prohibition was overbroad "because (1) it applies to nonviolent and nonthreatening images/messages related to weapons and (2) there is a dearth of evidence demonstrating that the display of images/messages related to weapons, nonviolent, nonthreatening, or otherwise, would substantially disrupt school operations or interfere with the rights of others."

The opinion wanders off into considering what all the dress code might prohibit, including the logo of the U.Va. Cavaliers: "Thus, under the 2002-2003 Jouett Dress Code, a student may not wear or carry any items bearing the State Seal of the Commonwealth of Virginia. Likewise, the symbol of the University of Virginia’s athletic
mascot—the Cavalier—is two crossed sabers. This symbol also relates to weapons. According to the Virginia Attorney General, the symbol is used throughout Charlottesville to direct visitors to the university’s football stadium and other facilities and simply to promote the university’s athletics. Ironically, Albemarle County High School, which is located across the street from Jack Jouett Middle School, uses the image of a patriot armed with a musket as its own mascot. Various clothing depicting support for the University of Virginia and Albemarle County High School by way of the schools’ mascots
would be banned under the 2002-2003 Jouett Dress Code."

The Court concluded that the policy was unconstitutional, as "[i]t excludes a broad range and scope of symbols, images, and political messages that are entirely legitimate and even laudatory."

This opinion is couched in all the right terms, and maybe even has the right outcome, but I'm not sure that I like it. It seems like sort of a sham case in the first place, since the opinion notes that since the dress code was amended, no one was doing anything to enforce it against the plaintiff, who contined to wear his NRA summer camp t-shirts from time to time. If the dress code was not going to be enforced before there was a hearing on the merits, then why not proceed to the merits in the normal fashion? I guess I'm just thinking about the school board paying all those attorney fees, perhaps ultimately for both sides in this case.

Attorneys' fees of $50,000+ affirmed in VCPA case

In Peter Farrell Supercars, Inc. v. Monsen, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Williams, and Duncan affirmed the judgment in favor of a consumer on claims of breach of contract, fraud, and violation of the Virginia Consumer "Practices" Act, which I thought was called the Virginia Consumer Protection Act, see Va. Code § 59.1-196, and an award of attorneys' fees under the Act.

The most interesting part of the opinion deals with the VCPA. For one, it states that the fraud rule for when a cause of action accrues applies to VCPA claims based on misrepresentation, which is not at all clear to me as being true. The whole point of the VCPA is to allow consumers an easier recovery, without having to prove all the byzantine elements of fraud - and if VCPA claims are not really fraud claims, they should not get the accrual rule reserved for fraud claims under Va. Code § 8.01-249. Even more interesting, the appellant raised Va. Code § 17.1-625, which says simply, "Although the party recovering may have had more than one attorney, only the fees of one shall be taxed in the same court." The appellant claimed that this meant the fee award could not include fees for the work of more than one attorney. The Fourth Circuit dodged the question of what the statute means, concluding that it was sufficient for the trial court to eliminate any duplication in the fee application of the multiple attorneys.

I never heard of this statute and have no idea what it means.

When is a judgment of acquittal not a judgment of acquittal

In U.S. v. Alvarez, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judge Michael and Judge Motz, reversed the trial court's "Judgment of Acquittal" and remanding the case for a new trial, because the trial court did not say that it had decided that the government's evidence could not support a conviction (even though that may be what the trial court meant to say).

Helping the jury find its place on the tape machine

In U.S. v. Pratt, the Fourth Circuit in an opinion by Judge Niemeyer concluded among other things that there was no error in allowing technicians to go into the jury room and cue up a part of the evidence on tape, that the jury could not find themselves. Judge Motz dissented on this point, explaining that the government must affirmatively prove that there was no harm in what was done.

Wrong place, wrong time

According to this report ("Homemade machine-gun maker seeks to withdraw guilty plea," 12/2) in the Tennessean, a Tennessee man is looking to withdraw his guilty plea to making his own machine guns, in light of the Ninth Circuit's ruling that the federal law prohibiting such guns is unconstitutional because there is no effect on interstate commerce.

That's telling them

Via How Appealing, this AP story ("State Justices Decline Fed. Court's Questions in Death Penalty Case," 12/4) reports that the Tennessee Supreme Court has refused to answer question about state law sent to it by a federal court in a death penalty case. I support the state court can let the federal court have a first crack at the state law issue, then decide in the next case whether the federals guessed right.

Northern Virginia Republican proposes increased tax on gasoline

The Washington Times reports here ("Manassas lawmaker plans rise in gas tax") that a Manassas Republican is preparing a legislative proposal for an increased tax on gasoline.