Saturday, January 31, 2004

The antidote for bad legal writing - cash prizes?

On Instapundit, Professor Reynolds describes here a hefty prize offered for a student legal writing contest at the law school in Knoxville.

I can't say that we had any cash prizes for legal writing at my law school, or that we had at honors banquet, or that we had any banquets. (There was a write-on contest for the law review, which is how I made it.)

I can't say that anything I learned anything about writing in law school, either. I have some funny personal rules about writing, they must be funny because everyone laughs when they hear them, and apparently the funniest of these is that every paragraph in the brief must have 3, 4, or 5 sentences, never 2, never 6. This rule is was not part of the law school curriculum, but instead is sort of a relic of the "hamburger paragraph" taught in Ms. Boggs' 10th grade English. (But my favorite high school writing story is this - Coach Borden telling the class in 9th grade: "You people don't know how to edit! You look at the paper and say to yourself, 'These are my words, I love them!'")

Retrial in the Gilmore and Church cases starts this week

The AP has this story on the retrial of the Gilmore and Church cases, which begins next week in federal court in Abingdon and is scheduled to last for six weeks. The cases involve the murder of three people in Tazewell County in 1989.

Virginia legislature delays consideration of teenager executions

As reported here ("Panel defers to court on the execution of juveniles," 1/31/2004) in the Norfolk paper, a committee of the House of Delegates voted down a proposal to ban the death penalty for juveniles, largely because some legislators preferred to see the outcome of the U.S. Supreme Court case involving the constitutionality of such executions.

If the Atkins case is any indication, however, the legislators' failure to act will be used by the court as evidence of the evolving views of the death penalty that would justify some new rule against juvenile executions. In Atkins, the Supreme Court looked to the deliberations of "the American public, legislators, scholars, and judges" between 1989 and 2002 over executions of the mentally retarded, noting in particular "the dramatic shift in the state legislative landscape that has occurred in the past 13 years." Virginia legislators might have wanted to stand up and be counted, one way or the other, rather than wait for the Supreme Court to figure out which way the legislative wind is blowing, assuming that is now the measure of what is cruel and unusual under the Eighth Amendment.

Virginia Supreme Court reconsiders cross-burning law on remand

Last year in the case of Virginia v. Black, the U.S. Supreme Court held that Virginia's statute criminalizing cross-burning could be constitutional, and sent the case back to the Virginia Supreme Court, for reinterpretation of the language in Va. Code § 18.2-423 which provides: "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons." This article ("Cross-burning case back to state court for review," 1/31/2004) in the Norfolk paper describes the background of the case, which was reargued earlier this month before the Virginia Supreme Court.

No red light cameras in Southwest Virginia?

The AP reports that a House of Delegates committee voted down legislation that would allow all Virginia localities to employe red light cameras to photograph and ticket red light offenders. Currently, such cameras have been tried only in some Northern Virginia localities authorized by special legislation.

More on the retrials of Burrow and Knox

Today's Roanoke paper has this article ("Burrow pleads not guilty to new charges," 1/31/2004) and the Richmond paper has this article *"Not-guilty plea given in D-Day fraud trial," 1/31/2004) on the not guilty plea from Richard Burrow in the D-Day monument fundraising case. The Roanoke paper also has this article ("Pain doctor, associates' new trial to be in Roanoke," 1/31/2004) saying the retrial of Dr. Cecil Knox will be in Roanoke, and not elsewhere as some earlier reports suggested.

Incremental approach for I-81 transformation proposed

Republican Delegate Chris Saxman from Staunton has proposed a bill that would prohibit the use of tolls and separate truck lanes on Interstate 81 through Western Virginia before a test project using available funds is completed, as reported here ("New bill would throw out toll plan," 1/31/2004) in the Roanoke paper.

Meanwhile, on up the interstate in Pennsylvania, the speed limit has been lowered back to 55 on Interstate 81 in the Carlisle area, as reported here ("Speed limit on I-81 to drop to 55 near Carlisle tomorrow," 1/29/2004) in the Harrisburg, Pennsylvania paper. I wonder why no one is proposing that in Virginia.

ALJ rules for whistleblower against Southwest Virginia bank under Sarbanes-Oxley

The Roanoke Times reports here ("Judge rules act protects whistle-blower," 1/31/2004) on the ruling in favor of a whistleblowing employee and against the Bank of Floyd on a claim brought before the Department of Labor under the Sarbanes-Oxley Act. The case is "said to offer the first decision related to whistle-blower protections promised by the Sarbanes-Oxley Act."

Bruce Shine of Kingsport represented the employee, Laura Effel of Flippen Densmore represented the bank.

Justice Lemons on Chief Justice Marshall and the anniversary of Marbury v. Madison

From this month's VBA News Journal, here is a speech delivered by Justice Donald Lemons of the Virginia Supreme Court last summer on Chief Justice John Marshall and the bicentennial of Marbury v. Madison.

As a summer law clerk in 1988, some case or other involved the possibility of filing for a writ of mandamus, which led me to recall the facts of Marbury v. Madison to the lawyer whose project it was. He said, hey, I never learned that in law school. I told him I didn't, either, I learned those facts in Mr. Feiler's eighth grade civics class.

Va. legislators on FOIA - do as we say, not as we do?

The Washington Post reports here ("State May Weaken Open-Meetings Law," 1/30/2004) and the Richmond Times-Dispatch reports here ("Bill excuses assembly from open-meeting law," 1/29/2004) on proposals to limit the application of the Freedom of Information Act to the activities of the Virginia General Assembly.

Friday, January 30, 2004

Bizarro world continues since Lawrence v. Texas

Since the Supreme Court's decision in Lawrence v. Texas, we have the Massachusetts case striking down the laws against same-sex marriage, the Florida case upholding a ban on adoption by homosexuals, the Kansas case upholding greater punishments for same-sex child abuse, and a case filed in Utah by some would-be polygamists (described here on

A year ago, I would have bet all the money in my pocket that Lawrence would be decided the other way, the Massachusetts case would be decided the other way, the Florida case would be decided the other way, the Kansas case would be decided the other way, and that no one would ever cite even a dissenting opinion by Justice Scalia in support of polygamy.

Absurd comparison of the recess appointments of Judge Gregory and Judge Pickering

This article comparing the recess appoints of Judge Roger Gregory of the Fourth Circuit and Charles Pickering is way, way off the mark. Judge Gregory was nominated by two presidents of different parties, a one of a kind, history-making example of a bipartisan choice for the bench. I don't believe that any of the Democratic candidates for President if elected will give much thought to renominating Judge Pickering.

Transcript in the municipal telecommunications case

Here is the transcript from the municipal telecommunications case, the argument of which I went to observe earlier this month, having filed three briefs for amici curiae in the case.

As I noted earlier, one memorable exchange was this:

MR. STRAUSS: . . . Our position in this case is straightforward and I can state it very simply. Gregory against Ashcroft applies in circumstances where the statutory language is ambiguous. The Court has said that three times, including Congress had said, for example, any corporation, which might leave some doubt whether Congress meant only private corporations and not municipal corporations.
QUESTION: But it doesn't mean any fish, for example. I mean, there are a lot of things it doesn't mean.
MR. STRAUSS: I -- I wouldn't -- I wouldn't -- I guess it doesn't mean any fish, Justice Breyer, but of the -- I think it has a very broad meaning.

More on Dickenson County wireless internet

Last year, the General Assembly passed and Governor Warner signed a new law enabling counties to establish wireless networks. This press release describes the Dickenson County Wireless Internet Project.

Thursday, January 29, 2004

My strongest endorsement in this election year - for FRAP 32.1

Howard Bashman has the lowdown on the proposed Rule 32.1 of the Federal Rules of Appellate Procedure regarding citation to unpublished appellate decisions.

Proposed Rule 32.1 says this:
Rule 32.1. Citation of Judicial Dispositions
(a) Citation Permitted. No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like, unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or other written dispositions.
(b) Copies Required. A party who cites a judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database must file and serve a copy of that opinion, order, judgment, or other written disposition with the brief or other paper in which it is cited.

I clicked through and filed a comment in favor of the proposed rule, and I urge my regular readers to do the same, by clicking here.

What can I say, rooting around for the magic case is what I like to do.

Chief Judge Wilson upholds Virginia sex offender registry law

In Ballard v. Chief of the FBI, Chief Judge Wilson dismissed a constitutional challenge brought by a pro se inmate to the Virginia statute providing for a registry of sex offenders.

How prompt is prompt

In Parker v. Malone, Chief Judge Wilson of the W.D. Va. held that the defendant had complied with the requirement of "promptly" filing the notice of removal in the state trial court, where the filing in state court was made 22 days after the notice of removal was filed in federal court.

Accused murderer at law school seeks venue change

The Roanoke paper reports here ("Defense seeks venue change in school shooting," 1/29) and the Bristol paper reports here ("Defense attorneys seek to have Odighizuwa's trial moved," 1/29) on efforts by counsel for the accused murderer at the Appalachian School of Law to obtain a change of venue for his criminal trial, away from Buchanan County.

The defendant is African. According to this page of facts from the 2000 census, the population identifying itself as black or African American in Buchanan County was 2.6% of the whole.

Wednesday, January 28, 2004

The big money Shoney's soup case

Matt at Abstract Appeal has the lowdown on the $407 award in the Shoney's wrongful soup case - including how it is that the plaintiff under Florida law might be required to pay the defendant's attorneys' fees.

Sounds like looting to me

For two years in a row, my sister gave me Atlas Shrugged for Christmas. (Maybe she got a volume discount.)

I can't say that I've become a student of Ayn Rand, but the headline "Free Money" for a post about an Atlas Shrugged essay contest must be some kind of a joke.

Tennesee's illegal ISP tax

Bill Hobbs posts here on how Tennessee is is no hurry to refund taxes on internet service providers collected illegally over the past few years.

The name game

I enjoyed this story, via How Appealing, of how a lawyer named Carter Phillips once addressed Justice Ginsburg as Justice O'Connor, and the next time he appeared before the Court, Justice Ginsburg referred to him as "Mr. Carter."

New Virginia trespass law following Hicks case passes the Senate

Last year, the U.S. Supreme Court sided with the Commonwealth in the Hicks case, where the issue was the constitutional validity of no trespassing rules at a housing development in the City of Richmond. This year, the Senate has passed a new law SB 233 on trespass policies for housing authorities, including a provision for the Attorney General's office to put forth a model policy taking into account constitutional issues. AG Kilgore's press release on the new law is here.

No change in SOL rules for graduation

The Richmond paper reports here that the House Education Committee rejected a proposal for some relief from the rule that high school seniors will not graduate this May without passing the Standards of Learning tests.

Failure to preserve error in objection to testimony of gerontology expert

In Correll v. Com., the Virginia Court of Appeals in an opinion by Judge Humphreys, joined by Judges Felton and Kelsey, concluded among other things that trial counsel had not adequately preserved its objections to the admissibility of a gerontology expert, in a criminal case involving the abuse and neglect of an incapacitated senior citizen.

Interrogation of student by associate principal does not violate Miranda

In J.D. v. Com., the Virginia Court of Appeals in an opinion by Senior Judge Coleman, joined by Judge Frank and Judge McClanahan, found there was no error in the denial of a motion to suppress self-incriminatory statements by a 14 year-old high school student in response to an interrogation by the associate principal on school grounds, in the presence of the school's safety officer and when the student's father, a teacher, was in the same building. The Court held that the principal is not a law enforcement officer and is not required to give his students a Miranda warning.

New W.D. Va. standing order on use of personal information in federal court papers

As we approach the advent of electronic filing of the W.D. Va., I have gotten around to reading the new standing order on the use of personal information in court papers. The standing order deals with the non-disclosure of Social Security numbers, birth dates, financial account numbers, and names of minor children.

We still have no local rules in the W.D. Va. Of how many other districts, I wonder, can that be said? I have a few pending cases outside the W.D. Va., and the local rules in those other districts have always helped me.

Post-judgment reduction in sentence for clarifying amendment to guidelines

In U.S. v. Goines, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judge Wilkinson, with Judge Luttig dissenting, reversed Judge Jones of the W.D. Va. on the issue of whether a criminal defendant was entitled to a reduced sentence based on a "clarifying" amendment to the Sentencing Guidelines.

For the non-practitioner, this opinion was pretty tough sledding.

Fourth circuit affirms exclusion of expert testimony in pesticide case

In Bourne v. E.I. DuPont de Nemours & Co., the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Niemeyer, and Gregory affirmed the summary judgment for the defendant pesticide manufacturer, concluding that there was no error in excluding the testimony of plaintiff's expert on causation, in a case where plaintiffs claimed birth defects resulted from the mother's exposure to a fungicide called Benlate.

Monday, January 26, 2004

Jack Kennedy wild about electronic filing in Virginia circuit courts

In this article ("Wise County court clerk pushing for e-filing of litigation," 1/26/2004) in the Kingsport Times (registration required), the Wise County Circuit Court clerk explains why he is nuts about electronic filing.

The Wise County Circuit Court has this memorable website, including a courtroom webcam. I heard the story that one time a lawyer in Norton, an older fellow but computer-savvy, was sitting in his office and had the courtroom cam turned on his screen while he worked at his desk, then heard the people in the courtroom starting to call out his name, so he ran out the door and drove quickly up to Wise.

More on mountaintop mining

The NY Times has this story which begins: "The Bush administration is moving to revamp a rule protecting streams that Appalachian environmentalists view as their best weapon for fighting the strip-mining technique of mountaintop removal.."

Supreme Court rules in John Lamie attorney's fee case

In Lamie v. U.S. Trustee, the U.S. Supreme Court agreed with the bankruptcy court and district court of W.D. Va. and the Fourth Circuit were correct in ruling against Abingdon attorney John Lamie on an issue regarding fees for counsel representing Chapter 7 debtors. The villain in the case was Congress, which apparently in recodifying the law regarding fees for professional services dropped the ball and left out critical language in the code section at issue, 11 U.S.C. 330(a).

Interesting, there was a concurring opinion by Justice Stevens, joined by Justices Souter and Breyer, which says that the "plain meaning" rule should not be so harshly construed as to preclude reference to the legislative history in such a case.

Sunday, January 25, 2004

More on the Giarratano case

Mark Holmberg explains here why there is more to know about the Joe Giarratano case than that some death penalty opponents think he was wrongfully convicted. Holmberg cites, among other things, the fact that Giarratano's own lawyer remains convinced that he is guilty.

Claude Allen renomination as evidence of Bush getting tough on judgeships

This article from National Review Online says that President Bush has gotten tougher but Senator Hatch has gone soft on the fight for the hearts and minds of the federal judiciary - the article notes that while the president defied tradition in nominating Claude Allen, a "Virginian," for a Maryland seat, Senator Hatch has told Democrat senators he will "negotiate" on the Allen nomination.

In an unrelated article, Senator Leahy cited the renomination of Allen together with the recess appointment of Charles Pickering as "disappointing developments" that would make it difficult for Senate judiciary committee members to work together.

Will the SOL bar be lifted?

The Washington Post reports here ("Bill Would Lift SOL Rule for Graduation," 1/25/2004) that the General Assembly will consider a last-ditch pitch on Monday to change the rule that would keep this spring's high school seniors from graduating unless they have passed the Standards of Learning tests.

200 down, 2,400 bills to go in this year's General Assembly session

This article ("Beyond the budget, a full plate," 1/25/2004) from the Richmond paper has the numbers on the workload for legislators in this year's General Assembly session.

Turning up the heat with added perjury charges in Knox, Gilmore, Church cases

In this very interesting article ("Perjury charges common in retrials," 1/25/2004) from the Roanoke Times, the point is made that prosecutors like to add perjury charges to increase the pressure on defendants in cases that must be retried. The W.D. Va. prosecutors have added perjury charges against Dr. Cecil Knox, against fundraiser Richard Burrow, and against an alibi witness in the Gilmore-Church cases.