Friday, February 20, 2004

Bar association says no to delegate's appeal for input on new judge

In a strange twist, a Peninsula-area delegate has concluded that since he has the votes to bounce a sitting circuit court judge, he wanted the views of the local bar as to whom he should propose as the successor, but the bar association is refusing to cooperate, as reported here ("Gear seeks input on replacing Andrews," 2/20/04) in the Daily Press.

I never heard of a bar association refusing to vote on anything, and I also thought that the local bar associations' views were carrying less weight these days.

Fourth Circuit refuses to free Lentz pending appeals

In the E.D. Va. case including reversals of jury verdicts and findings of prosecutorial misconduct, the Fourth Circuit refused to free kidnapping defendant Jay Lentz, as reported here ("Appeals court rejects arguments that convicted killer be freed," 2/20/04) in the Norfolk paper.

More on the dismissal of the defendant in the Shenandoah Park murder

Lawyers for the man accused of murdering two women in the Shenandoah National Park, only to see the charges dropped, are claiming the federal prosecutors made up the case against him, as reported here ("Feds invented case, Rice's lawyers say," 2/20/04) in the Roanoke paper and here by the AP.

Thursday, February 19, 2004

For a good time call

I loved this post from Marcia Oddi regarding the auctioning on eBay of 867-5309, a telephone number the fame of which is second only to BR-549, the number for Samples Auto Sales on "Hee-Haw."

Nobody left to stop tax increases in Virginia

That's the conclusion in this editorial from the Washington Times, following Monday's vote in the House, which notes that Republican AG candidate Robert McDonnell did not vote either way on the revenue measure.

Somewhat similarly, the Virginian-Pilot opined here that nobody is at the helm of Virginia government in matters of finance.

Closing FOIA loophole for information on economic development deals

The Daily Press reports here ("Legislators want info loophole on deals shut," 2/19/2004) that the General Assembly is considering another expansion of the exceptions to the open records requirement of the Virginia Freedom of Information Act, to protect documents in the hands of local officials containing information regarding prospective economic development deals.

No college degree required for home schooling in Virginia?

According to the couple from Charlottesville who sit behind me at Scott Stadium, the delegate who looks most like be is Robert Bell. (One of us is surely defamed by that comparison.) Anyhow, Del. Bell is sponsoring a measure to reduce the educational requirements for parents to homeschool their children, and the measure is still alive in the Senate, as reported here by the AP.

So what if AOL is in Virginia?

The lawyer for a spam defendant from North Carolina questions whether spam sent via AOL was transmitted through Virginia, and is seeking dismissal of charges against him, according to this report.

More on the VMI dinner prayer appeal

From the Legal Times via, this article examines the appeal to the U.S. Supreme Court in the VMI dinner prayer case.

Wednesday, February 18, 2004

AOL sues spammers under Virginia Computer Crimes Act

As reported here, AOL has sued a bunch of spammers in Florida, on legal theories including the Virginia Computer Crimes Act.

Hospital has no right to medical malpractice panel

In Lovelace v. Rockingham Memorial Hospital, Chief Judge Wilson for the W.D. Va. concluded that a hospital has no right to the referral of a medical malpractice case to a panel under the Virginia statute, Va. Code 8.01-581.1, et seq., for a case filed originally in federal court based on the Court's diversity jurisdiction, notwithstanding the requirements of the Erie doctrine. Judge Wilson went on to deny the hospital's motion to certify the case for interlocutory appeal.

Challenging the constitutionality of Virginia's post-conviction page limits

The Legal Reader has this post, which says a Virginia man facing the death penalty is claiming that "the state's 50-page limit on post-conviction petitions made it impossible for his attorneys to present all the different arguments that might persuade courts to reverse his sentence," linking to this story from the Boston Globe.

I think the actual rule, Rule 5:7A, actually allows a habeas corpus petition to exceed 50 pages with leave of a single justice of the Court, but I don't expect that any of the justices are much interested in accommodating petitions of more than 50 pages. Just this past weekend, I retold the story that I once filed a 105-page paper in support of a motion, and even my wife said that's not a "brief," and when I told the judge of her comment, he added, "did she also say what would be perfectly obvious to anyone else, which is that there's no way you can expect me to read all that?"

Fiber-optic connection in downtown Big Stone Gap

The Coalfield Progress provides this update ("Fiber-optic telecom pipeline coming to downtown," 2/18/2004) on the Lenowisco project to bring fiber-optic telecommunications to downtown Big Stone Gap.

Tuesday, February 17, 2004

Worth reading - from the Virginia Lawyer

I don't know if this is a true story by Colin Thomas from Staunton, but I suspect that it is.

No federal forum for landfill fee refund suit

As reported here ("Federal court will not hear landfill use fee lawsuit," 2/17/2004) in the Coalfield Progress, Judge Jones of the W.D. Va. has dismissed for lack of jurisdiction the federal class action suit filed for refunds of the Wise County landfill fee that has been declared unconstitutional.

In Indian Creek Monument Sales v. Adkins, Judge Jones based his decision on the Tax Injunction Act. Judge Jones identifies the state law remedy as based on Va. Code 8.01-186, which says nothing in particular about taxes but does allow courts issuing declaratory judgments to proceed with entering further relief beyond declarations. I would not have thought that this statute authorizes any kind of remedy against the government which is not authorized in some other statute - if the fee really is a tax, the tax statutes ought to provide the remedy, such as under Va. Code 58.1-3990. Indeed, there are Virginia cases suggesting that there is no state law remedy at all when a "tax" is declared unconstitutional, that the ruling applies prospectively only, and the taxpayers must depend on the largesse of the taxing authority for retrospective relief.

The Court goes on to discuss the availability of class-based relief in state court, concluding that he sees no reason why one claim could not be made in state court for all of the money. I think this was a mistake, surely unnecessary to the jurisdictional issue, possibly wrong on the law, and probably bad for the administration of justice, since the issue will almost surely come up again before the state courts - they'll have to decide whether Judge Jones' advisory opinion on this point is correct, and if they disagree, that won't exactly increase public confidence in the court system. (In any event, perhaps a gang of plaintiffs will join together in one big case, under Va. Code 8.01-267.5). The other thing that will be missing from a state court action, presumably, is a statutory right to attorneys' fees - which would have been available to the prevailing party in federal court under 42 U.S.C. 1988, and might well exceed the fees at issue. See Russell County Social Services v. O'Quinn, 259 Va. 139, 523 S.E.2d 492 (2000) (no attorneys' fees authorized under Declaratory Judgment Act).

The Court also concludes that the landfill fee was a tax, particularly since the idea of a "tax" under the Tax Injunction Act need not correspond with what is a "tax" under the Virginia Code.

Connected wirelessly in Dickenson County

The Coalfield Progress reports here ("County's new wireless project providing new connections," 2/11/2004) on a demonstration of the Dickenson County Wireless network ("DCWIN"), the first of its kind under a new Virginia law passed last year.

House of Delegates playing ball on increasing revenues

Delegate Bryant opines here ("Inching toward a budget agreement," 2/16/2004) that his colleagues have finally come to their senses and are engaged in finding solutions to Virginia state government's money problems.

The Roanoke paper reports here ("GOP: Bill is revenue-raiser," 2/17/2004) that the House will vote today on a measure that will eliminate some sales tax exemptions for businesses.

No jury, no 1981a damages for retalation claim under ADA

In January, a panel of the Seventh Circuit held in the case of Kramer v. Bank of America Securities, LLC that a plaintiff with a retaliation claim under the Americans with Disabilities Act is limited to the old-fashioned Title VII remedies, cannot recovery punitive or "compensatory" damages under 42 U.S.C. 1981a, and has no right to a jury trial.

Monday, February 16, 2004

Different kind of No. 1

This press release details a presentation to the Marshall-Wythe School of Law (as it was called when I was there) of the College of William & Mary (my law school) honoring its claimed status as "America's Oldest Law School."

You'd think that if they were not going to call it "Marshall-Wythe" any more, they would stop trying to call it "America's oldest."

Sunday, February 15, 2004

We're No. 1?

The AP reports here that Virginia is the state where persons convicted of capital murder are most likely to be executed.

On deadlines for removal and default

The Insurance Defense blog has this post unraveling this published opinion by Judge Jones of the W.D. Va. on how to determine the timeliness of a notice of removal and responsive pleadings when service is made on the Commissioner of the Department of Motor Vehicles, who is the statutory agent for service of process on out-of-state motorists involved in Virginia accidents.

Studying Virginia's birth-related neurological injury law

The LitiGator has this post studying the birth-related neurological injury compensation schemes of Virginia and Florida, noting this overview of the two programs, and referencing this analysis by Duke University Medical Center of both programs.

House panel approves Verizon-endorsed bill to allow higher rural phone bills

The Richmond paper has this report ("Panel OKs bill sought by Verizon," 2/13/2004) on the Verizon-backed bill that would allow higher rural phone rates.

Two-minute warning for first half of legislative session

The AP has this report on the waning hours of the first half of this year's session of the General Assembly.

Next mass tort defendants - Hollywood?

Not that this article in the Washington Post has anything to do with anything, but it does mention how a thirty-something woman joked about suing because there was no real guy like the character in "Sixteen Candles," and the article includes this sentence: "And anyone who went to high school in the 1980s understands how difficult it can be to turn away from "Sixteen Candles" or "The Breakfast Club" or "Ferris Bueller's Day Off," no matter how busy they are, how many times they've seen it, or how many commercial breaks come along."

Gone with the wind - Atlantic states' old tobacco barns

The Washington Post (registration required) has this article ("As Tobacco Fades, Barns Wilt," 2/15/2004) on the disappearance of tobacco barns, in states where tobacco has been grown since the 1600s.

House backs off mandatory three days for first-time DUI

This story ("House drops part of DUI bill," 2/14/2004) in the Norfolk paper explains how theHouse of Delegates stepped back from proposed anti-DUI laws that would have been among the toughest in the nation.

My sister told me once that the laws against drunk driving in Sweden were so punitive that there were no drunk drivers, but to her observation in that country there were, however, an awful lot of drunk walkers.

Old man who killed Staunton's favorite dog gets $1,500 fine

The Richmond paper reports here ("Jurors convict man who shot dog," 2/13/2004) on the criminal trial and verdict in the case of a man accused of shooting a big dog who was the unofficial mascot of downtown Staunton.

Judge Bork to educate at Richmond law school

The Richmond paper reports here ("Bork to join faculty at UR," 2/13/2004) that former D.C. Circuit Court of Appeals and Supreme Court nominee Robert Bork will teach next year at the T.C. Williams School of Law of the University of Richmond.

Economics of the Malvo and Muhammad cases

The AP reports here that so far, the defense costs for the sniper Muhammad are $886,516, and the defense costs for the sniper Malvo are $1,021,337.

Economics of I-81 expansion considered

In articles here from the Roanoke paper ("Panel gives Star's plans green light for 1-81," 2/15/2004), here ("VDOT panel says STAR plan closest," 2/15/2004) in the Bristol paper, here ("I-81 Expansion May Toll Truckers," 2/14/2004) from Channel 11, and here ("Panel wants all drivers to pay," 2/14/2004) in the Richmond paper the finances of the expansion of Interstate 81 are discussed.

Apparently, it would take a big increase in the gas tax to pay for the interstate widening project, and since the General Assembly would never agree to that, the cost will be paid through tolls on users, the incidence of which will fall mostly on locals in Western Virginia from Bristol to Winchester, since the interstate traffic will find other routes, including Interstate 95 in Virginia, which I always thought was more dangerous than 81. People will do weird things to avoid paying the government, ask any Bristol Virginia employee with employees from Tennessee.

I guess I'll never understand these things, but it seems to me that all of these facts have always been true - if it took local money, there were be no interstates. If interstate traffic is what makes the expansion necessary, then federal money should be the solution. If tolls on Virginians are what is required, then put the tolls on every mile of road in the state. If taxes are the only solution, then put in a new bunch of legislators. What is intolerable is Western Virginians paying the bill for what ought to be a statewide and national expense. (Let's see, I drive on the Interstate about 20 miles per day, at 20 cents per mile, that $4 per day, 25 days per month, 12 months per year, that $1,200 - guess I'll be taking Jonesborough Road or Route 11 or swinging around by the lake to get to and from Bristol.)

Constitutional challenge to the 21-day rule

The Roanoke paper has this article ("21-day rule is taken to court," 2/15/2004) on the case of a Roanoke defendant who is claining on appeal to the Virginia Supreme Court that the 21-day rule as applied to him is unconstitutional.