Saturday, March 13, 2004

Commentary on the Virginia cross-burning case

The Richmond paper has this commentary on the decision of the Virginia Supreme Court in the cross-burning cases remanded from the U.S. Supreme Court.

The commentary begins: "The Virginia Supreme Court struck just the right balance in its ruling on the state's cross-burning law. While ratifying the constitutionality of the prohibition against burning crosses with the intent to intimidate, the Court also made it clear that burning a cross is a form of symbolic speech that should not be banned automatically and everywhere."

FERC judge rules that AEP should be allowed to join PJM power distribution group

The Richmond paper reports here ("Law judge rules for AEP plan," 3/13/04) that an administrative law judge of the Federal Energy Regulatory Commission has rejected Virginia's arguments and ruled that American Electric Power should be allowed to join the PJM regional power grid, which covers the mid-Atlantic states. The articles notes that Virginia and Kentucky have passed state laws to prevent AEP from joining the multi-state group.

Cavalier Daily column stirs protest

The Washington Times reports here on the protest against a column published in the student newspaper at the University of Virginia. The protest concerned the use of Jewish stereotypes.

Unruly commentary on why there was no resolution commending Judge Askew

The Daily Press has this commentary on how a resolution honoring the late Judge Byrd passed the General Assembly, while a similar resolution honoring former Judge Askew was withdrawn.

More on 21-day rule and tougher DUI penalties

The AP has this report on the criminal law changes wrought by this year's General Assembly, now awaiting the signature of Governor Warner, and including a provision for the forfeiture of vehicles used by drunk drivers guilty of multiple DUIs.

Williamsburg adopts new limits on outdoor parties

The Daily Press reports here on new limits adopted in Williamsburg on the size of outdoor parties.

The biggest outdoor party I remember from when I was a student in Williamsburg was actually held across the river over in Gloucester (but then I was a graduate student, so I didn't get out much).

More on the costs of the sniper trials

Earlier this week, Judge Jones of the W.D. Va. avoided for now the prospect of starting over in the month-long retrial in the Church and Gilmore murder cases.

Today, the Washington Post (reigistration required) has this article ("Trying Snipers Cost Va. $3 Million," 3/13/04) on the costs to Virginia and local government of the sniper cases, discussing the question of whether there should be further trials of Malvo and Muhammad.

A constitutional amendment on who votes fill vacancies in reconfigured districts

The Roanoke Times has this article ("Who votes on vacancy when districts change? Voters to say," 3/13/04) on the progress of an amendment to the Virginia Constitution that would answer the question who gets to vote to fill a vacancy when a legislative seat gets redistricted.

Newport News high school takes on student's anti-abortion t-shirt

Having learned nothing in particular from the NRA t-shirt case up in Charlottesville, officials at a high school in Newport News are claiming a "pro-life" t-shirt violates the school's policies, according to this report, which is the subject of this Volokh post.

Ah, now, a good friend of mine from college and law school days is a woman who is Catholic, went to Denbigh H.S., I would guess she is somewhat liberal in her politics (meaning less conservative than I), and she is or was a lawyer (I've lost track). I wonder what she would have to say about this - and I have no idea.

Do social conservatives really say this?

I read this post from Freespace and wondered what would it mean if none of the First Amendment applied to the states. One thing it might mean is that there would be a lot more litigation under state constitutions.

Now, the Virginia Constitution (adopted in 1971) contains the following regarding freedom of religion, in language some of which probably wouldn't be allowed to hang on a courthouse wall:

"That religion or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and, therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other. No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief; but all men shall be free to profess and by argument to maintain their opinions in matters of religion, and the same shall in nowise diminish, enlarge, or affect their civil capacities. And the General Assembly shall not prescribe any religious test whatever, or confer any peculiar privileges or advantages on any sect or denomination, or pass any law requiring or authorizing any religious society, or the people of any district within this Commonwealth, to levy on themselves or others, any tax for the erection or repair of any house of public worship, or for the support of any church or ministry; but it shall be left free to every person to select his religious instructor, and to make for his support such private contract as he shall please."

UPDATE: Then again, people will say anything; in fact, some people might argue that not only does the Fourteenth Amendment not incorporate the First, but also there is no Fourteenth Amendment at all.

Bloggers take on Fairfax County politics

Via this post from Bill Hobbs, I read this article on the blogging of Fairfax County politics. One of the bloggers, Commonwealth Commonsense, yesterday had this entertaining postwith Virginia news, including the quote about the delegate from Fairfax County who complained that all the high-earners that would be affected by a tax-the-rich proposal live in his district. I may have to add this one to my own list.

Check this book spotted by Ken Lammers

Read this post from CrimLaw about the book Hail to the Dragon Slayer by Arthur Lemann III.

Mailbox rule proposed for post-conviction inmate filings

The Virginia Supreme Court is seeking comments on proposed Rule 3A:25, which would make inmate filings when properly put into the prison's mail system in accordance with the Rule.

The rule is limited to petitions brought under Va. Code 8.01-654 and does not apply to other kinds of civil suits brought by inmates.

Friday, March 12, 2004

General Assembly votes $1.2 million for innocent man imprisoned for 21 years

The AP reports here that the General Assembly has approved a record payment to a former inmate who was imprisoned for 21 years for a rape he did not commit.

No mistrial in the Gilmore and Church cases

Judge Jones of the W.D. Va. declined for now to rule that the hearsay evidence made inadmissible by the Supreme Court's latest Confrontation Clause opinion has tainted the trial that has been going on for several weeks in Abingdon, as reported here ("No mistrial in Pocahontas triple slaying case," 3/12/04) in the Bristol paper and here ("No mistrial in triple slayings," 3/12/04) in the Roanoke paper.

I had expected that the judge would rule the other way, but then again, he's sitting through this case for the second time, and the prospect of scrapping all the work that has gone into the current trial might be viewed as a colossal waste if there is some way to salvage the proceedings without denying the rights of the defendants. I'm not sure that I understand what the Court is going to do to make sure the bad evidence is not or was not considered.

Justice Scalia to speak at William & Mary law school

How Appealing has a link to this press release on the upcoming appearance by Justice Scalia at the law school of the College of William & Mary.

One thing about going to law school in Virginia - the justices can get to your school much easier than if you were almost any place else. Justice Breyer was in Charlottesville at the University of Virginia not long ago, as reported here.

More on the Haynes nomination

From this How Appealing post is a link to this statement by two Republican Senators (from outside the Fourth Circuit) in support of the President's nomination of William Haynes to the Fourth Circuit.

Thursday, March 11, 2004

More on the U.S. Supreme Court's use of foreign-law precedents

As reported here ("A flap over foreign matter at the Supreme Court," 3/11/04) by MSNBC, Congressman Bob Goodlatte is one of the sponsors of a Congressional resolution telling the Supreme Court that they are wrong to be citing foreign law as if that could provide any basis for the interpretation of the U.S. Constitution. That would be almost as bad as citing case law from the Ninth Circuit.

Why we won't be taking depositions in Baghdad

TalkLeft has this post about a young woman lawyer who went to Iraq and was murdered. The comments question whether she was murdered because she was an advocate for women's rights - I would be interested to know the answer.

Haynes nomination to Fourth Circuit moves forward

Howard Bashman has this post noting among other things that the nomination of William Haynes is proceeding to the full Senate, and a link to this statement by Senator Kennedy from Massachusetts in opposition to the committee action on the Haynes' nomination at this time. In particular, Senator Kennedy notes that "[i]n response to the Senate Questionnaire's request for the 'ten most significant litigated matters which [he] personally handled,' he was able to list only three cases that he litigated himself." Mr. Haynes has been employed as general counsel for the Department of Defense, as reported here by the AP.

Votes on state court judgeships

Yesterday, the House agreed on its choices for circuit court judgeships, which included Sherrie Capotosto over Judge Andrews for Hampton and Tim Battle for Alexandria. The Senate measure, as amended, did nothing on these two positions. According to this report ("Andrews decision left to governor," 3/11/04) in the Daily Press, the Senate's side-stepping leaves it to the Governor to decide those positions.

The Bristol paper reports here on the selection of Bristol's Commonwealth's Attorney Larry Kirksey for the 28th Circuit.

The Roanoke paper has this report on the selection of Radford's Commonwealth's Attorney to a general district court judgeship, to fill the seat of retired Judge Danny Bird from Wytheville.

More on the motion for mistrial in the Gilmore and Church trial

The Roanoke paper has this report ("High Court ruling complicates Gilmore, Church murder trials," 3/11/04) on the upcoming hearing today on a motion for mistrial in the federal trial of accused murderers Gilmore and Church, a motion that might well be granted because the Supreme Court changed the law on Monday in a way that affects the admissibility of evidence that was admitted earlier in the ongoing trial in Abingdon.

Wednesday, March 10, 2004

Fourth Circuit affirms denial of spoliation sanction against Wal-Mart

In Hodge v. Wal-Mart Stores, Inc., the Fourth Circuit, applying Virginia law, in an opinion by Judge Luttig joined by Judges Wilkinson and Traxler, affirmed the District Court's summary judgment ruling, in which the Court refused to sanction Wal-Mart for spoliation of the evidence in a personal injury case.

Fourth Circuit affirms denial of spoliation sanction against Wal-Mart

In Hodge v. Wal-Mart Stores, Inc., the Fourth Circuit, applying Virginia law, in an opinion by Judge Luttig joined by Judges Wilkinson and Traxler, affirmed the District Court's summary judgment ruling, in which the Court refused to sanction Wal-Mart for spoliation of the evidence in a personal injury case.

Worth reading - The Case against Courtroom E-lecterns

Technolawyer has this worthwhile article on courtroom presentations and the merits of using laptops over document cameras.

Judging the judge-making process in Virginia

The Richmond paper has this article ("Review of judges is examined," 3/10/04) on the judicial selection process for the state courts in Virginia.

New ruling on Confrontation Clause may bust up Gilmore and Church trial

On Monday, in Crawford v. Washington, the Supreme Court overruled a fairly recent precedent, concluding that the Confrontation Clause precluded the prosecution's use of recorded testimony from an earlier trial by an unavailable witness. For some comment on the case from one of the law professors cited in the opinion, see this page from the University of Michigan law school.

That ruling seems likely to cause a mistrial in the ongoing Church and Gilmore federal murder cases that have been on trial in Abingdon since February, according to this report ("Defense lawyers ask for mistrial in Pocahontas case," 3/10/04) in the Bristol paper.

Tuesday, March 09, 2004

They still burn flags, don't they?

Howard Bashman and others are asking whether people still burn American flags (within the United States). The last episode I know about was ended by Cubs' centerfielder Rick Monday when he snatched the flag away from the protester in the outfield at Dodger Stadium in 1976.

Judge Widener dissents from denial of rehearing in qualified immunity case

In Bailey v. Kennedy, the Fourth Circuit denied rehearing en banc, and Judge Widener wrote an opinion dissenting from the denial of rehearing, on the issue of qualified immunity.

Court of appeals rejects claim that embezzler wrote 142 checks on a single impulse

In Bragg v. Commonwealth, the Court of Appeals in an opinion by Judge Frank, joined by Judges Benton and Felton, held that the defendant, a former church treasurer, was properly charged with 5 counts, rather than one count, of embezzlement, over the defendant's argument that he wrote all the checks from the church account on "one impulse" over time because he was broke.

Add Hampton to Alexandria on the list of judgeships with House, Senate splits

The Daily Press has this story ("Andrews gets nod from House panel," 3/9/04) on the continuing struggle in the House of Delegates over the reappointment of the circuit court judge for Hampton, which is opposed by the only Republican in the House from that area.

Lawyers sued for bad research in gun case

As reported here ("Man sues his former attorneys," 3/9/04) in the Roanoke paper, a former inmate is suing his Roanoke lawyers for millions after he got his case dismissed based on his own criminal law research, uncovering a point his lawyers had allegedly missed.

Prosecutors planned to use a bunch of bad act evidence in Rice case

The Roanoke Times reports here ("Documents cast new light on Rice case," 3/9/04) on all the other bad act evidence the prosecutors planned to use in the case in the case against the accused killer in the Shenandoah National Park murders, whose case has been dropped.

Monday, March 08, 2004

What's in Louisville on the Second Saturday in May?

Answer: the closing session of 64th Conference of the Sixth Judicial Circuit of the United States. As I understand it, in some years such as this year, admission to the Sixth Circuit judicial conference is open to everybody who practices in the courts that make up the Circuit, no judicial invitation required.

Fun with movies

Ernie the Attorney added my response to this post with his quiz about the movie that demonstrates to every law student the pitfalls of misapplying the Rule Against Perpetuities, namely that you might wind up going to jail for murder in place of Kathleen Turner.

Pendent or pendant?

How do you spell "pendent," with an "a" or an "e"? And, have you ever used the "head count" method of resolving spelling disputes? I'm afraid to say that I have done, many a time - for example, get on Westlaw, pull up the SCT database, stick in "pendent /s jurisdiction" as the query (78 cases), stick in "pendant /s jurisdiction" (1 case), draw your own conclusions.

I won't mention our in-house dispute over the correct spelling and usage of the term, "kitten kaboodle," except to say that in many notes to my assistant I tell her I want the "whole kitten."

College in Virginia for home schoolers

The NY Times (registration required) has this story on Patrick Henry College in Virginia, a college mostly for people who were home-schooled. The article notes "the increasing influence that Christian home-schooling families are building within the conservative movement."

Wasn't "Patrick Henry University" the name of the school in Atlas Shrugged? Maybe Tim Sandefur can refresh my recollection.

Former Henry County administrator pleads guilty on tax charges

The former Henry County administrator who embezzled about $800,000 from the county evidently did not report it as income to the IRS, and so he entered a plea of guilty to tax charges today before the W.D. Va., as reported here in the Richmond paper ("Clower Pleads Guilty to Federal Charges," 3/8/04).

Advisory committee on rules proposes single action for Virginia

Here is a proposal for a single action for legal and equitable claims in Virginia, from the advisory committee on rules.

I can't imagine who would be opposed to this change. Lawyers my age and perhaps a good bit older learned the federal rules in law school and have to unlearn and relearn a lot of strange stuff to pass the Virginia bar and practice in state court. The limited nature of this procedural reform is demonstrated by the following, taken straight off the website:


1. Law and Equity Would not be "Merged". The proposal creates a single procedure system for civil cases in the Commonwealth, while preserving in all respects the distinctions between law and equity, as noted below, concerning the substance of equitable claims and defenses, rights of action, limitations principles, and the powers and limits on the courts in entertaining such actions.

2. Subject matter Competence, and Powers, of the Courts would not be altered. Apart from creating a single "side" at the circuit court level, no expansion or contraction of powers of any court, or of the claims properly heard therein, would result. (Nor would venue, forum non conveniens, or service of process rules be affected in any way.)

3. What is a Legal Claim, and what is Equitable, would not be changed. The proposal would make no changes m the historic characterization of causes of action as legal or equitable in nature.

4. Jury Trial Rights would not be affected. The proposal would not alter the historic rules for availability of a jury. Jury trial rights in those actions at law in which a jury is available would be preserved. Actions sounding in equity would be heard by the court without a jury. Virginia's well-articulated rules for jury consideration of dispositive factual matters arising in Pleas in equity, and for advisory jury verdicts on issues out of chancery, would also be maintained. In mixed claims, it is expected that claims triable to a jury will be heard before judgment is entered on claims tried to the court.

5. The Law applicable to Equitable Claims would not change. The proposal would also not affect the established law of Virginia on the elements or requirements for equitable causes of action, e.g., partition of real property.

6. The Law applicable to Claims or Defenses at Law would not change. Similarly, no change would be effected in the nature or application of law governing claims heretofore brought on the law side of the court, or defenses applicable to such claims. See Rules 1:4(k), 3:8, Code § 8.01-422.

7. Pleading and Motion Practice would not be affected . No change would be worked in the philosophy of Virginia toward the broad goals of "notice pleading", expressed in rules and practices governing sufficiency and particularity of pleadings, or such considerations as variance between pleading and proof. Similarly, motions, pleas, demurrers and related procedures would not be affected.

8. Requirements for Equitable Relief would not be altered. The proposal would not affect the requirements for obtaining an injunction, specific performance, or other forms of equitable relief. The showings required under existing law would continue to apply.

9. Equitable Defenses would not be applied differently . Defenses of an equitable nature (such as unclean hands) would be applied to equitable claims as they have in the past, and the proposal would not enlarge the range or use of defenses in legal claims.

10. The rules governing Joinder of Claims would not be altered. The proposal would not alter the rules permitting joinder of claims or defenses under alternative factual or legal theories, arising out of the same transaction or occurrence. See Rule 1:4(k) and Code § 8.01-272 (contract and tort claims). The trial court would retain discretion to determine the propriety of conjoined causes of action, for pretrial and trial purposes. Similarly, multifarious equitable claims would also be subject to the power of the court, and it is not intended that any greater freedom be created to bring, for example, independent and unrelated claims in a single suit.

11. Joinder of Parties would not be changed. The proposal will neither expand nor contract existing provisions for joinder of parties plaintiff or defendant under the Code, the Rules, or case law. See, e.g., Fox v. Deese 234 Va. 412, 362 S.E.2d 699 (1987). (Likewise, the law of joint tortfeasors, contribution and indemnity would not be affected.)

12. The law of Standing would not be altered . The proposal would not affect the established rules in Virginia concerning who has standing to maintain action, whether controlled by statute (see, e.g., Code §55-22) or case law. See, e.g., Wells v. Lorcom House Condominiums' Council of Co-Owners, 237 Va. 247, 377 S.E.2d 381 (1989).

13. Collateral Estoppel and Res Judicata principles are not affected. The proposal would not seek to alter the doctrines or res judicata or collateral estoppel, or the requirement of mutuality of estoppel articulated in the Virginia cases.

14. Statute of Limitations and Laches law would not be changed. The proposal, by preserving the distinction between legal and equitable claims, would work no alteration in the limitations principles found in the Code and Supreme Court decisions, nor would it affect the law of laches. Limitations principles would continue to apply to legal claims, and laches would apply as in the past for equitable claims. Any overlap would be handled as it has historically been dealt with. See, e.g., Belcher v. Kirkwood, 238 Va. 430, 383 S.E.2d 729 (1989).

15. The practices for use of Commissioners in Chancery would not be altered . In equitable actions the trial court would remain free to use Commissioners in accord with the Code and local practice.

16. The role of the General District Court and the J&DR Court would not change. This proposal would not confer on the General District Court, or the J&DR Court, any greater power to issue injunctions or other equitable relief than the court has at present. Rather, the focus of the proposal is to harmonize the two sides of the circuit court.

More on taxes in Virginia

Here is anti-tax commentary from Paul Jacob, a term-limits supporter.

The Richmond paper had this article, the Norfolk paper had this article, and the Daily Press had this article on last night's budget talks. Somehow, I think the Senate group is doing a bad job of explaining what the extra $4 billion in their deal, over and above what the governor proposed, does for Virginia. The Times-Dispatch article quotes one senator as saying, "At least give us a chance to convince you." They need to convince a lot of people.

The Norfolk paper has this interview ("Gilmore defends his legacy," 3/8/04) with former Governor Gilmore, who says, among other things, "I don’t know why the public should believe politicians at this point"

Sunday, March 07, 2004

What pain and suffering can be inferred from the dollar amount of medical bills

In Barkley v. Wallace, decided on Friday, the majority of the Virginia Supreme Court in an opinion by Justice Keenan held that it was reversible for the trial court in a personal injury case to exclude evidence of the amount of plaintiff's medical bills, where the plaintiff claimed the dollar number would be introduced for the limited purpose of confirming the plaintiff's pain and suffering. The Court split 4-3 on the question of whether the trial court's error was harmless, with Justices Lacy and Agee joining the dissent of Justice Kinser, who concluded the error was harmless because the plaintiff introduced other evidence on the issue and the exclusion of the cumulate evidence could not have affected the verdict.

It is not that clear to me that there is much of a connection between what medical services cost (as opposed to other facts about the medical services) and the amount of pain and suffering. That's sort of like trying to guess how far did you go on a commercial flight based on the cost of the plane ticket - there might be a connection, but then again, there might not. (The flight to Philadelphia last month cost almost $800!)

Split between House and Senate on how to pick judges

According to this report from the Washington Post, a Circuit Court vacancy in Alexandria has brought the differences between the House of Delegates and the Senate over the method of selecting judges. The Senate would defer to the local legislators, of whatever party, while the House leadership says no deference is due to Democratic legislators. Stated in such bald terms, it's hard to get excited about either method, except to say that either one beats what they've got in WV, KY, and TN.

More on Friday's Supreme Court opinions

The Richmond paper has this article ("Coal, methane ruled separate," 3/6/04) on the coalbed methane case.

The Richmond paper has this article ("Va. court rules on intent of cross-burnings," 3/6/04), the Roanoke paper has this article ("High court clarifies law on burning crosses in Va.," 3/6/04), the Norfolk paper has this article ("Va. Supreme Court upholds cross burning convictions," 3/06/04), the Washington Post (registration required) has this article ("Convictions Stand In Cross Burning," 3/6/04), and the AP reports here on the cross-burning cases.

One young woman's account - prison is a nightmare

"A young woman convicted of involuntary manslaughter last year went before a Roanoke County judge Friday to complain that prison is 'like a nightmare,'" according to this report ("18-year-old gets no sympathy in complaints about prison," 3/6/04) in the Roanoke paper.

Former county supervisor may plead guilty in forgery case

The Roanoke paper has this story ("Bedford County ex-supervisor may plead guilty," 3/6/04) on an ex-supervisor from Bedford County charged with 82 felony counts of forgery in connection with a scheme to get approval for a road project.