Saturday, January 24, 2004

More on Fourth Circuit and expert witnesses

The always excellent Blog 702 says here that the Fourth Circuit issued an unpublished opinion this week upholding the exclusion of expert testimony about how the defects in a ladder on a yacht caused the plaintiffs injuries.

The case is Higginbotham v. KCS Int'l, Inc., a per curiam opinion for the panel of Chief Judge Wilkins and Judges King and Gregory. The court of appeals that the methodology of plaintiff's expert was too speculative for his opinions to be admissible.

Who says a county board is not sovereign?

In this article about a lawsuit against Chesterfield County, a U.Va. law professor is quoted as saying ""You can sue a board of supervisors. Sometimes, you can even succeed. . . . The point is, the board is not sovereign. The board is a subordinate unit of the government. The commonwealth is sovereign, not the board."

What's that guy talking about? In Virginia, counties as the bedrock political subdivisions of the Commonwealth share fully in the sovereign immunity of the Commonwealth, and unlike the Virginia Tort Claims Act, which allows some claims against the Commonwealth, there are no exceptions to that immunity for counties. The immunity of counties, unlike for cities and towns, is not limited to claims arising out of the governmental activities of the county. The county board in its official capacity is totally immune from state law tort claims. In federal court, counties don't share in the Commonwealth's Eleventh Amendment protection, but that is not exactly the same thing as sovereign immunity, and there are some statutes where Congress has expressly abrogated even the Eleventh Amendment protection of the states. County board members and employees are not necessarily immune as individuals, but neither are employees of the Commonwealth. County board members probably are immune when they act as legislators, including legislation about zoning, in the same way that individual state legislators are immune.

Besides, immunity is not an issue in a suit that is not for money damages, which I don't believe is part of the Chesterfield County suit, which is some kind of zoning matter. When I read something like this in the paper, I wonder what was really said between the reporter and the expert. (Also, I wonder how it is that I get all fired up about questions of sovereign immunity.)

Grayson County murder case without a body

The Roanoke Times reports here ("Lack of boy's body won't stop murder trials," 1/24/2004) on an upcoming murder trial in Grayson County, in a case where the young victim's body was never found.

House of Delegates committee stops two anti-gun bills

In the never-ending fuss over the details of gun control in Virginia, the House Militia, Police and Public Safety Committee derailed two proposals, one dealing with firearms in the possession of persons involved in domestic violence and the other one allowing schools to prohibit guns from school grounds, as reported here ("Delegates committee kills pair of gun bills," 1/24/2004) in the Daily Press.

The article notes that federal law already prohibits persons who have been convicted of domestic violence from possessing firearms.

On the local option issue for schools and hunting rifles, advocates of the law wanted to give school boards the discretion to decide whether hunting weapons should be prohibited on school property.

Virginia delegates want Virginia out from under No Child Left Behind

According to this story ("Va. Seeks To Leave Bush Law Behind," 1/24/2004) in the Washington Post, the Virginia House of Delegates passed by a vote of 98-1 on Friday a resolution calling for the federal government to give Virginia and other like states an exemption from the requirement of the federal No Child Left Behind program.

Republicans finishing work on reform plan for state court judgeships

The Norfolk paper reports here ("State GOP poised with final reform for judiciary," 1/24/2004) that Republicans in the General Assembly are nearing completion of a plan for the evaluation of state court judges - which includes evaluations from jurors and lawyers during a judge's term.

The article describes the current judicial selection process as follows:

"Under the current process, many local judgeship candidates interview with a panel of citizens and lawyers.

They must also seek endorsements from their bar associations and win nominations from their Senate and House representatives.

The Senate and House Courts of Justice committees then interview leading candidates. The committees pick their top choice. Then the Senate and House votes on the judgeships.

During the process, candidates must fill out a questionnaire about their judicial experience, training, education, financial stability and club affiliations. They must also agree to a criminal background check."

Cost of hosting Muhammad trial - $558,701

According to this report ("Virginia Beach tallies cost of sniper trial at $558,701," 1/24/2004) in the Norfolk paper, the cost to the City of Virginia Beach of hosting the trial of convicted murder John Muhammad was $558,701.

I'd say the security costs were the least of it. Someone was telling me the other day that the cost to date for the federal government in lawyer fees and costs just for the defense side in the Gilmore and Church case was much more than $1,000,000, and this is before the next trial begins in February. I wonder what the defense costs will be in the Muhammad and Malvo cases.

Mike Urbanski sworn in as magistrate judge for the W.D. Va.

The Roanoke paper reports here )"Urbanski sworn in as magistrate judge," 1/24/2004) on the swearing-in of Roanoke attorney Michael Urbanski as the new magistrate judge for the U.S. District Court for the Western District of Virginia, filling the vacancy created when former magistrate judge Glen Conrad became a district court judge.

Friday, January 23, 2004

Case study in idiocy

I'm always wondering how to demonstrate the difference between negligence, gross negligence, reckless indifference.

Maybe this case is one example. In Gantt v. Security USA, Inc., the Fourth Circuit reversed the district court's entry of summary judgment on the state law intentional infliction of emotion distress claims. The opinion begins like this:

"Dominique Gantt informed her employer, a private security company, that she had obtained a protective order barring her former boyfriend from any contact with her. But Gantt’s supervisor, apparently believing that the estranged couple "should talk," permitted the boyfriend access to Gantt. The boyfriend then, at gunpoint, kidnaped Gantt from her work place and held her captive for six hours, assaulting and raping her. Gantt brings this action against her employer seeking damages for her resulting severe emotional and mental distress. . . ."

The part that really makes me irate is that the employer was a security company!

Thursday, January 22, 2004

Christie selected as new member of SCC

As reported here by the AP, the General Assembly has selected Mark Christie, counsel to the Speaker of the House, as the new member of the Virginia State Corporation Commission. The State Corporation Commission is the public utility commission in Virginia, in addition to responsibilities for the registration of business entities.

School official denied qualified immunity in speech case about race

In Love-Lane v. Martin, a split panel of the Fourth Circuit concluded that a school superintendent was not entitled to qualified immunity on claims that he retaliated against an assistant principal for her speech on a matter of public concern involving racism in the public schools. Judge Michael joined by Judge Gregory wrote the opinion for the majority, and Judge Wilkinson dissented on the qualified immunity issue.

Well, the dissent gets my vote on this one. The dissent makes the point that the effect of the denial of qualified immunity in another race case is to make life too hard for government officials charged with maintaining employee discipline. In Cromer, and now again in Love-Lane, the Court has declared that matters of race are so taboo that no reasonable official would think he could take adverse action against an employee who speaks out on racial matters - without ironclad proof that the speech was not the reason. The result may be that sensible administrators will make their disciplinary decisions regarding such individuals based on the availability of courtroom evidence to prove employee misconduct, rather than their best judgment about what is the right thing to do.

Also, there is a strange reliance in the majority's opinion about the significance of the plaintiff's own characterization of the manner of her speech. I would not have thought from other cases that this kind of self-assessment evidence would be insufficient to create a genuine dispute of material fact. Compare Bryant v. Bell Atlantic Maryland, Inc., 288 F.3d 124, 135 (4th Cir. 2002) (evidence that amount[s] to no more than subjective belief[] . . . is insufficient to create a genuine issue of material fact as to any discriminatory conduct); DeJarnette v. Corning Inc., 133 F.3d 293, 299 (4th Cir. 1998) (the plaintiff's perception of [her]self . . . is not relevant).

On concealed handguns in the Commonwealth

Rule of Reason has this interesting post on the law of concealed handguns in Virginia, and advocates passage of Senate Bill 579, which criminalizes carrying around a gun while you have a blood alcohol content level of .02 percent or more.

VTLA explains opposition to damages caps in med mal claims in Virginia

The Lynchburg paper reports here ("Medical proposal opposed," 1/22/2004) the opposition of the Virginia Trial Lawyers Association to a legislative proposal from Republican Delegate Steve Newman to limit non-economic damages in medical malpractice cases, to $250,000 - this, I suppose, would be in addition to overall damages limit, which is now capped at $1.8 million, according to the article.

More on Claude Allen nomination

Via How Appealing, the Baltimore Sun has this article ("Bush nominates Allen again for 4th Circuit appeals court," 1/21/2004) and the Richmond Times-Dispatch has this article ("President nominates Allen again," 1/21/2004) on the renomination by President Bush of Claude Allen to sit on the U.S. Court of Appeals for the Fourth Circuit.

Meanwhile, one of the Volokh conspirators has taken up the Claude Allen nomination, and concluded that knowing nothing else, he would be suspicious of a former Jesse Helms aide as a judicial nominee, as shown here.

Still searching for evidence of Joseph Giarratano

According to this report ("Judge isn't sure Giarratano evidence exists," 1/22/2004) in the Richmond paper, a Norfolk judge has ruled in the case of former death-row inmate Joseph Giarratano that he doesn't think that law enforcement officials should be required to conduct any more searches of their files for possible DNA evidence that might help Giarratano prove that he is innocent. Giarratano was on death row until he got a conditional pardon from Governor Wilder.

W.D. Va. U.S. attorneys compound the case against Dr. Knox

This report ("New charges pile up on pain doctor," 1/22/2004) in the Roanoke paper and this report ("Doctor faces new painkiller charges," 1/22/3004)in the Richmond paper describe how the U.S. Attorney's office for the W.D. Va. has added new charges in the latest indictment of Dr. Cecil Knox, the Roanoke doctor who was acquitted on 30-some charges and got a hung jury on the rest at the end of a lengthy trial last year. Dr. Knox is mainly charged with overbilling the government and overprescribing pain medication.

Wednesday, January 21, 2004

Tort reform before the General Assembly

This Washington Post article ("Va. Bill Aims to Limit Liability Suits," 1/20/2004) describes the proposals introduced in the House of Delegates that would limiting lawsuit against gun manufacturers, tobacco companies, and fast-food restaurants in the Commonwealth.

Virginia judgeship news

The legislature has picked one of its alumni, former Sen. Trumbo, for the vacant judgeship in the 25th Circuit, covering the counties of Botetourt, Craig, Rockbridge, Alleghany, Bath and Highland and the cities of Lexington, Buena Vista and Covington, as reported here in the Roanoke paper ("General Assembly elects Trumbo circuit court judge," 1/21/2004).

In addition, the legislature has voted out an African-American judge in Virginia Beach, as reported here, citing the fact that he was reprimanded by the Virginia Supreme Court, as reported here ("Beach judge removed from his position," 1/21/2004) in the Norfolk paper. This is the second year in a row the Republican-controlled legislature has ousted a sitting African-American judge.

Also, the Northern Virginia legislators will not approve what amounts to an additional year for a Fairfax County general district court judge, one year away from mandatory retirement, as reported here ("Lawmakers Seek to Oust Fairfax Judge," 1/21/2004) in the Washington Post.

Also, President Bush has renominated in the new session of Congress Claude Allen to sit on the U.S. Court of Appeals for the Fourth Circuit, as reported here by the AP.

Ah, the fertile mind of Del. Marshall, on the unborn and gay marriage

According to this report in the Roanoke paper, two of the bright ideas of Delegate Robert Marshall have been rejected this session, one being a ban on executing pregnant woman, and the other a statutory provision for the impeachment of judges who recognize gay marriage, in the manner of the Massachusetts appeals court judges.

Both of these proposes seem pretty far over the top to me, and the latter is probably just plain unconstitutional. Are there no constitutional guarantees of judicial independence in the Virginia Constitution? Maybe not.

Tuesday, January 20, 2004

Birthday presents

Thanks for these anniversary posts on How Appealing, Freespace, the Curmudgeonly Clerk, Southern Appeal, Indiana Law Blog, Abstract Appeal, and Begging the Question.

Also, congratulations to IsThatLegal, also reaching the age of 1.

P.S. Add to that list for thank yous - this post from Ernie the Attorney.

Should the people vote on taxes?

Tim Sandefur points out here how odd it sounds for Governor Warner's office to say, in effect, that life is too short to put tax increases to a vote by the people.

Virginia verdict sparks debate in medical circles

As described in this post from the LitiGator, a million dollar medical malpractice verdict has sparked some lively debate in the medical world about what is malpractice, particularly as regards the standard of care for diagnostic testing.

Cert granted in Truth in Lending Act case from 4th Circuit

According to this SCOTUSBlog post, the U.S. Supreme Court has granted certiorari in the case of Koons Ford v. Nigh, involving claims under the Truth in Lending Act.

More on party caucuses and FOIA

In this editorial, the Virginian-Pilot says that AG Jerry Kilgore's opinion that the open meeting requirements of the Freedom of Information Act apply to some party caucuses of members of the General Assembly is a good thing.

General Assembly starts session by nixing live TV in the House

According to this Washington Times article, the General Assembly session got started with a decision to not allow televised floor debates in the House. Delegate Robert Marshall probably convinced everyone on this point, when he asked, "Do you really want someone like me to get even more exposure?" (Delegate Marshall has a lot to say.)

Judge Wilkinson gets Jefferson Medal

The Cavalier Daily reports here that among this year's recipients of the Jefferson Medal is Fourth Circuit Judge and former U.Va. professor J. Harvie Wilkinson, III.

On the late Judge Roberson

The Coalfield Progress has this article on former Wise County Circuit Court Judge James Roberson, who died a few days ago.

Monday, January 19, 2004

More on the Fredericksburg FOIA case

SW Virginia law blog reader Becky Dale offers her opinion here in the Richmond paper regarding the case argued last week before the Virginia Supreme Court whether city councilmen can swap e-mails without having a meeting.

I suppose that even if e-mails are out, IMs among the members of the board of a public body would be bad, because that would be more like a meeting via telecommunications, but then how many supervisors and councilmen sit around playing with IMs?

First anniversary of Southwest Virginia law blog

Incredibly, I started blogging a year ago today.

Belated thanks to those who have helped make SW Virginia law blog a fun thing for me to do, by noting my blog or adding me to their lists or citing my posts or responding to my e-mails: Howard Bashman, Denise Howell, Ernie Svenson, Tom Mighell, Jerry Lawson, David Giacalone, Ken Lammers, Tim Sandefur, Ben Domenech keeping watch on Virginia politics, Bill Hobbs (likewise in Tennessee), members of the vast conspiracy of federal law clerks - "Feddie" (no longer anonymous) and the Curmudgeonly Clerk, Brian Peterson in West Virginia, Marcia Oddi in Indiana, Matt Conigliaro in Florida, and municipal telecom guru Al Bonnyman, among others. The best part of blogging is stealing from their minds.

Many of these are the usual suspects, the same people to whom everyone else says thanks, which means only that their good deeds and examples deserve more credit, and not that I am any less grateful to be among the beneficiaries.

On Friday's death penalty rulings

The Richmond paper has this article ("Va. high court affirms death penalties," 1/17/2004) and the AP has this article on the rulings by the Virginia Supreme Court in the four death penalty cases decided on Friday.

Delegate Kilgore's apple butter bill

This AP article made the local paper this morning, regarding Delegate Kilgore's proposal to legalize the use of copper kettle to make apple butter in Virginia.

Kaine says no on death penalty in Virginia

According to this article ("Death penalty divides Kaine, Kilgore," 1/18/2004) in the Richmond paper, Lt. Governor Kaine opposes the death penalty, citing his religious beliefs.

Methadone clinic advocates claim proposed new Virginia laws may violate ADA

The Roanoke paper has this report ("Legislation would all but bar drug clinics," 1/18/2004) in which some lawyers claim that the proposed new Virginia laws restricting the location of methadone clinics may violate the Americans with Disabilities Act.

Oral argument before Va. Supreme Court in Fredericksburg FOIA case

This article ("Va. high court reviews council's e-mail use," 1/15/2004) in the Richmond paper makes it look like the Virginia Supreme Court has some doubts about whether public officials can violate FOIA by exchanging e-mails.