Saturday, March 06, 2004

More on the military lawyer recruiters and Professor Chemerinsky

I just read the amicus brief for the military law students at UCLA, William & Mary, and other law schools, filed in the constitutional challenge to the Solomon Amendment brought by some law professors in New Jersey, and I noticed that one of the plaintiffs is Professor Chemerinsky, whom I understand to be leaving the law school at the University of Southern California to join the faculty at Duke. IsThatLegal has this post about the lack of "ideological diversity" at Duke.

At one of the seminars I've attended on section 1983 litigation, Professor Chemerinsky was one of the speakers and he told a joke about a spelling contest between Bill Clinton, Clarence Thomas, and Dan Quayle. A court reporter in Bristol liked the joke so much she asked me to retell it every time I saw from about 1996 until she died last year.

One William & Mary student wins the vote in Williamsburg

Via this post from Votelaw, this story in the Daily Press reports that one but not all of the William & Mary students seeking the vote in Williamsburg were found to be qualified, in proceedings before the Circuit Court of Williamsburg-James City County.

E-mail exchange not a meeting under Virginia's FOIA

Yesterday in Beck v. Shelton, the Supreme Court in an opinion by Justice Lemons concluded, among other things, that an exchange of e-mails between the members of the City Council of Fredericksburg did not violate the open meeting requirements of FOIA. The Richmond paper has this report ("E-mails don't make a meeting, court says," 3/6/2004), the Fredericksburg paper has this report ("Ruling clears council," 3/6/04), and the Washington Post (registration required) has this report ("Fredericksburg City Leaders Win Lawsuit on E-Mail ," 3/6/04) on the case.

This decision eliminates one objection to the use of e-mail by public officials, but the issue then becomes whether when and how the e-mails are public records subject to disclosure under the Act. In his opinion, Justice Lemons states that "There is no question that e-mails fall within the definition of public records under Code [section] 2.2-3701." Indeed, there is no question that e-mails can fall within the definition of public records under Va. Code 2.2-3701, which defines "public records" to mean "all writings and recordings that consist of letters, words or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostatting, photography, magnetic impulse, optical or magneto-optical form, mechanical or electronic recording or other form of data compilation, however stored, and regardless of physical form or characteristics, prepared or owned by, or in the possession of a public body or its officers, employees or agents in the transaction of public business." The term "transaction of public business" is not defined, but probably it means just about anything related to the business of the public body.

The FOI Council has this short memo on e-mail, FOIA, and the Public Records Act. One of the suggestions is that "Public officials and employees should not commingle personal and official e-mails. Private e-mails do not need to be retained; e-mails relating to the transaction of public business do. From an e-mail management perspective, it is probably not a good idea to mix personal and official business in the same e-mail. Official e-mails that need to be retained should be maintained in separate folders."

Better yet, board members who use their home computers probably ought to set up a wholly separate e-mail account for government-related communications, and expect that they might be required to produce every single e-mail they send or receive through that account.

Friday, March 05, 2004

Virginia Supreme Court rules on remand in cross-burning cases

Last April in Virginia v. Black, the U.S. Supreme held that Virginia could criminalize cross-burning with the intent to intimidate, but remanded the case for the Virginia Supreme Court to rule on the meaning of the "prima facie evidence" language in Va. Code 18.2-143, which says: "Any such burning of a cross shall be prima facie evidence of an intent to intimidate a person or group of persons."

Today, the Virginia Supreme Court, in an opinion by Justice Lemons, ruled in Elliott v. Commonwealth that the prima facie evidence part of the statute is unconstitutional, but severable, and therefore affirmed the convictions of the defendants. In doing so, the Court basically had the chance to reconstrue the application of the statute (expressed in the Model Jury Instructions) in a way that would make the statute good but the jury instructions bad, but chose not to do it. This choice strikes me as somewhat at odds with the canon of construction by which "a statute will be construed in such a manner as to avoid a constitutional question wherever this is possible." Eaton v. Davis, 176 Va. 330, 339, 10 S.E.2d 893, 897 (1940).

On severability, the Court applied Va. Code 1-17.1, under which invalid statutory provisions are made severable, "unless (i) the statute specifically provides that its provisions are not severable; or (ii) it is apparent that two or more statutes or provisions must operate in accord with one another."

The Court rejected the defendants' argument that the statute was unconstitutional under the free speech provisions of the Virginia Constitution, declaring that Article I, section 12 of the Constitution of Virginia "is coextensive with the free speech provisions of the federal First Amendment."

Finally, in disposing of the cases, the Court noted that the bad jury instruction on "prime facie evidence" was not given in the case that was tried, and there was no trial in the other case where the defendant entered a guilty plea, and so the defendants' convictions were valid under the remaining parts of the statute, once the unconstitutional provision was severed from them.

This case strikes me as very strange, indeed, the procedural contortions that the different courts have gone through to get to this point. In the Hicks case, I thought, the First Amendment challenge to the trespass statute was rejected at least in part because Hicks wasn't engaged in any protected expression. If the overbreadth of the prima facie evidence part of the statute does not affect these defendants, then it is as if all these appellate proceedings have been about over the legal effect of a statutory construction made only by the drafters of the Model Jury Instructions. I guess I don't understand how the litigation of overbroad criminal statutes is supposed to work.

Virginia Supreme Court affirms coalbed methane decision for landowners over coal owner

In Harrison-Wyatt, LLC v. Ratliff, the Supreme Court in an opinion by Senior Justice Stephenson upheld the ruling of Judge Williams of the Buchanan County Circuit Court on the issue of title to coalbed methane passed with the conveyances of rights to the coal. The answer is no, the surface owner and his successors retained ownership of the coalbed methane. The Court concluded that the word "coal" is not ambiguous.

Metadata in MS Word file shows changes in theory of pleading in lawsuit over Linux

This story ("Document shows SCO prepped lawsuit against BofA," 3/4/04) from cnet about the pleadings in the pending Linux litigation shows yet again how metadata in Word documents can come back to bite you. Now, why would the plaintiff in the case let anyone get hold of the bare Word file in such a case, I wonder? If an outfit like that doesn't know about metadata, then who does?

UPDATE - Dennis Kennedy knows, and his post is here. A post from Esq Law Tech is here.

Texas database being kept on patients who sue doctors

The NY Times (registration required) has this story on a database for doctors on patients who sue doctors.

Chief Judge Wilson rules Walton competent enough for execution

In Walton v. Johnson, Chief Judge Wilson of the W.D. Va. denied the petition of death row inmate Percy Walton, whose lawyers claimed he is not competent to be executed by the Commonwealth.

In a second opinion, Chief Judge Wilson required the respondent to show cause why costs should not be imposed against him, because of the inadequacy of state law procedures to assess the competence of inmates like Walton.

The Roanoke Times has this story ("Judge finds Va. lacking in procedures to review inmate's mental competence," 3/5/04) on the case.

Senate committee declines to enable tolls on cars for I-81

The Roanoke paper reports here ("Panel halts bill to allow tolls on cars," 3/5/04) that a Senate committee passed to next year consideration of lifting the ban on tolls for cars, despite suggestions that car tolls are necessary for the Interstate 81 project.

Thursday, March 04, 2004

Richmond-area GDC judge resigns over racial remarks

The AP is reporting here that a general district court judge with almost 20 years on the bench in the Richmond area has resigned over racial remarks made in some online chat forum.

Downward departure in cross-burning case reversed

In U.S. v. May, the Fourth Circuit in an opinion by Judge King joined by Judges Williams and Traxler reversed the downward departure from the guidelines in the sentencing of a North Carolina man accused of, among other things, burning a cross to make a black man married to a white woman want to leave the neighborhood. The trial court judge was Chief Judge Mullen from Charlotte.

UPDATE: The AP has this story on the case.

Isn't that what they are on Judge Charles Pickering about, advocating leniency in sentencing in a cross-burning case? One set of articles on this point is published here and here.

Still litigating a 2000 vote - under the NLRA

In NLRB v. Media General Operations Inc., the dispute was over a representation election at Media General's production facility at Mechanicsville, Virginia, where the employees voted in September of 2000 by a count of 16-15 to be represented by the International Association of Machinists and Aerospace Workers. The Court in a published decision written by Judge King and joined by Judge Widener and District Judge Bennett from Maryland sided with the NLRB and against the Company on issues related to the fairness of the election and the Company's subsequent failure to bargain.

First mistake - hiring the powermower

In U.S. v. Quinn, the Fourth Circuit affirmed the convictions of a Treasury Department employee and "her paramour," who she hired to work with her, for soliciting bribes, conflicts of interests, and other crimes.

Wednesday, March 03, 2004

Sanity hearing before Chief Judge Wilson in the Walton death penalty

The Richmond paper is reporting here ("Murderer Is Sane, Psychiatrist Testifies," 3/3/04) on the hearing before Chief Judge Wilson of the W.D. Va. to determine whether Percy Walton is sane enough to be executed.

On the constitutionality of the federal death penalty

Howard Bashman has this post on the ruling from the Second Circuit vacating the decision by a district court judge that the federal death penalty is unconstitutional.

Locally, Judge Jones of the W.D. Va. in this opinion (and perhaps others) from the ongoing Church case refused to go along with District Judge Rakoff's conclusions regarding the constitutionality of the federal death penalty.

W&M Law group joins in opposition to anti-military lawsuit

This article from the UCLA student paper mentions that a group from the law school of the College of William & Mary has filed papers joining in the opposition to the anti-military lawsuits filed by some anti-military law professors protesting the federal law provision which penalizes schools that discriminate against military recruiters on campus.

Chief Judge Wilson orders inmate to take medication for competency to stand trial

In U.S. v. Mackie, Chief Judge Wilson of the W.D. Va. ordered that the defendant will be required to take the medicine that would make him competent to stand trial.

Judge Jones grants summary judgment on qualified immunity in police chase case

In Roop v. Glenn, Judge Jones granted summary judgment on the section 1983 claims of the plaintiffs against a state police officer who allegedly caused them to drive off the road and down the mountain in the national forest area above Norton. The Court dismissed the supplemental state law claims without prejudice.

On the plaintiffs' Fourth Amendment claim, the Court concluded that there was no seizure. The Court concluded that there was no substantive due process claim.

Law reader among probable list of new judges in Tidewater

The Norfolk paper reports here ("Three open judgeships in Norfolk, Beach to be filled," 3/3/04) that one of the lawyers likely to be made a new judge in Virginia Beach is a woman who read the law, the alternative to law school in Virginia.

W&M students get no joy in suit to get vote

The AP reports here and the Richmond paper reports here ("Registrar upheld on voter status," 3/3/04) and the Daily Press reports here ("Judge denies W&M students' vote request," 3/3/04) that Judge Jackson of the E.D. Va. refused to rule in favor of three William & Mary undergraduates who want to register to vote in Williamsburg.

Inmate sues over newspaper subscription

As reported here ("Inmate sues newspaper over subscription woes," 3/3/04), the Roanoke Times is getting its own taste of inmate litigation.

National Republicans target campaign against Boucher

The Roanoke paper reports here ("Bush's team advises Va. Republicans on strategy," 3/3/04) that the national Republican Party will spend some money to support Kevin Triplett in his campaign against Rep. Rick Boucher, who has been the representative from the Ninth District for 20+ years.

More over-the-top talk in the lawsuit against Appalachian School of Law

This Roanoke Times article ("Lawsuit: Grundy school trying to cover up facts," 3/3/04) has more of the strangely overboard remarks of counsel for the plaintiffs in the litigation over the shootings at the Appalachian School of Law.

Oddly, plaintiff's counsel Mr. Yeary appears to be complaining mostly about a memo written by his old law partner, the counsel for the law school, Ms. Tate.

When I read an article like this, I recollect the local rule in federal court over on the Tennessee side, and therefore wholly inapplicable to the case in Wise County, Virginia, which says:

LR 83.2 Public Statements by Attorneys

(a) Civil Proceedings. No lawyer or law firm associated with a civil action shall, during its investigation or litigation, make or participate in making an extrajudicial statement, other than a quotation from or reference to public records, which a reasonable person would expect to be disseminated by means of public communication if there is a reasonable likelihood that such dissemination will interfere with a fair trial and if such dissemination relates to:

(1) evidence regarding the occurrence or transaction involved;
(2) the character, credibility, or criminal record of a party, witness, or prospective witness;
(3) the performance or results of any examinations or tests or the refusal or failure of a party to submit to such;
(4) the attorney's opinion as to the merits of the claims or defenses of a party, except as required by law or administrative rule; and
(5) any other matter reasonably likely to interfere with a fair trial of the action.

Tuesday, March 02, 2004

Bar council opposes voluntary dues check-off for legal aid

As stated in this free article from Virginia Lawyers Weekly, the VSB Council is opposing the legislation sought by Legal Aid in Virginia to put a box on the dues statement of Virginia lawyers to allow them to make voluntary contributions to Legal Aid.

The arguments against the check-off box have to do with what kind of precedent is this, does it create a kind of public forum, what are the costs of collecting the money, we don't the legislature to use this as an accuse to give less money to Legal Aid, we do't want the legislature to even think about the money lawyers pay to the Virginia State Bar or they might want to steal it for deficit reduction, and so on.

The response to this is that Virginia's legal aid societies are not the United Way or the benevolence fund, they are the responsibility of the Virginia State Bar by law, and there are no other charitable organizations like them. So, the legislation proposed by Legal Aid would only set a precedent applicable to those charitable entities that provide legal services to the poor under rules and regulations which the Bar itself was required by law to define.

Delegate names assistant U.S. attorney as his choice for state judgeship

The Daily Press reports here ("Gear selects replacement for Andrews," 3/2/04) that Delegate Gear has named a woman from the U.S. Attorney's office for the E.D. Va. as his choice to succeed Hampton Circuit Court Judge William Andrews.

House votes for relief from the 21-day rule

A committee of the House of Delegates forwarded along a bill which would allow criminal defendants in some circumstances to present evidence of innocence more than 21 days after the final order of the trial court in their cases, as reported here ("House takes step toward ending 21-day rule on evidence," 3/2/04) in the Roanoke paper.

Also in the news this week was more on the Roger Keith Coleman case, and whether the Governor should allow further DNA testing, as the Roanoke paper reported here ("Coleman's prosecutors welcome DNA testing," 2/29/04). There's a chapter in the John Tucker book about the Coleman case, Chapter 12, titled "A Day Late," which deals with how the appeal on the state law habeas claims regarding the ineffectiveness of counsel for Coleman was dismissed because the notice of appeal was untimely filed. Somehow that's always stuck in my mind as the harshest element of the Coleman case - his best chance for reversal forfeited because his lawyers missed by one day the deadline for filing a notice of appeal, which unlike the petition for appeal, requires almost no actual legal thought.

International fuzzy red mascot wars - Western's Big Red v. Gabibbo

This post from the Trademark Blog has the pictures of "Big Red" and "Gabibbo", now the subject of litigation brought by Western Kentucky University in Italy to protect its intellectual property rights in its mascot.

I think at least one of my cousins from Shelby County, KY, went to Western, or then again, maybe it was Eastern.

The University of Virginia once had a somewhat similar but orange mascot called the Hoo, which was so poorly received that it was abolished by popular demand, as best I recall.

Whether larceny from the person under Virginia law is a crime of violence for federal sentencing

In U.S. v. Smith, the Fourth Circuit in an opinion by Chief Judge Wilkins joined by Judges Gregory and King held that the Virginia crime of "larceny from the person" as defined by Va. Code 18.2-95 should be considered a "crime of violence" for purposes of the Federal Sentencing Guidelines, joining the decisions of other circuits considering similar laws. See, e.g., United States v. Howze, 343 F.3d 919, 923-24 (7th Cir. 2003); United States v. Griffith, 301 F.3d 880, 885 (8th Cir. 2002), cert. denied, 537 U.S. 1225 (2003); United States v. Payne, 163 F.3d 371, 374-75 (6th Cir. 1998); United States v. Hawkins, 69 F.3d 11, 13 (5th Cir. 1995); United States v. De Jesus, 984 F.2d 21, 23-25 (1st Cir. 1993).

Under Va. Code 18.2-95, larceny is a felony if the value of what is taken is over $200, unless the offense was larceny from the person of another, in which case, the crime is a felony if the value of the property that is taken is $5 or more.

Trial date set for cross-warrants brought by Appalachia's town manager and a councilman

After the Town Manager and a member of the town council for Appalachia brought warrants against each other for a run-in at town hall, they weren't allowed to be around each other, until Judge Fulton of the General District Court made an exception for town council meetings. Their cases will be heard at the end of March, according to this report ("Trial set in alleged fight between Appy manager, councilman," 2/25/04) in the Coalfield Progress.

Monday, March 01, 2004

Double oops

Alert readers inform me that I got the outcome right but the names of the dissenters wrong in Boyd v. Henrico.

Boy, that's two in less than a week. Not good.

Confidential settlement to NRA t-shirt case

The Hook reports here ("Gagged: T-shirt settlement kept quiet ," 2/26/04) on a confidential settlement of the case brought against a Charlottesville-area school district for violating the First Amendment rights of a student who wore an NRA t-shirt to class.

Republican delegate deals Ali a low blow

Continuing an odd theme of this blog, that early '70's sports figures were the greatest, I am appalled by the comments ("Ali takes a beating in House," 2/28/04) of Delegate Mark Cole about Muhammad Ali. It's the same kind of talk that mostly often gets used in Virginia to attack historical figures who were slaveowners or Confederate soldiers. I think Ali is a historical figure, like it or not.

Update - I toned this down a bit, in response to e-mails which pointed out correctly that the original was rude and unnecessary.

The guilty pleas in the law school killings

The Bristol paper had articles here ("Lawton: 'The enormity of our loss can never go away,'" 2/28/04) and here ("Not all wanted to see Odighizuwa offered plea bargain," 2/28/04), Channel11 had this report ("Guilty Plea In Law School Shooting," 2/27/04), the Roanoke paper reported here ("Law school shooter gets 6 life sentences," 2/28/04), the Washington Post (registration required) reported here ("Law School Shooter Pleads Guilty," 2/28/04), and the Bluefield paper reported here ("Peter Odighizuwa condemned to 6 life sentences, 28 years," 2/27/04) on the sentencing of the man who killed three people in 2002 at the Appalachian School of Law in Grundy.

Bad briefing

Here is a somewhat-delayed link to a delightful post from Tim Sandefur about a really bad brief, described as follows by one opinion writer:

"To the extent BAM has successfully persuaded me of the fundamental soundness of its position, that success should not be attributed, in any degree, to its counsel’s unrestrained and unnecessary use of the bold, underline, and "all caps" functions of word processing or his repeated use of exclamation marks to emphasize points in his briefs.... While I appreciate a zealous advocate as much as anyone, such techniques, which really amount to a written form of shouting, are simply inappropriate in an appellate brief. It is counterproductive for counsel to litter his brief with burdensome material such as “WRONG! WRONG ANALYSIS! WRONG RESULT! WRONG! WRONG! WRONG!"

Probably the only brief like that I have written was on a petition for rehearing, which Justice Stevens once described as futile to the administration of justice but beneficial to society in allowing frustrated lawyers to ventilate.

More Virginia prisons?

Via CrimLaw, the Roanoke paper reported here ("State says it needs 2 new prisons," 2/24/04) that the Virginia Department of Corrections wants two new prisons, including one in Tazewell County.

Also, I read somewhere over the weekend that the Commonwealth is cancelling its deal to house prisoners from Connecticut, because it needs the space itself.

UPDATE - today's Richmond paper has more ("More prisons for Va. - but how many?," 3/1/04) on this subject, including a dispute between the State Senate and the Governor as to whether there should be one more prison, or two.

More on the Floyd County Bank Sarb-Ox case

Via How Appealing, the AP had this additional report on the Bank of Floyd whistleblower case (from the LA Times, registration required).