Saturday, April 24, 2004

Well-known Roanoke attorney disbarred for kiting checks

According to this report ("Roanoke attorney disbarred for check kiting," 4/24/04) in the Roanoke paper, attorney Sam Garrison has been disbarred for check-kiting.

Describing Garrison, the article says: "Garrison, 64, a former Roanoke commonwealth's attorney, U.S. vice presidential aide and Watergate counsel, has been one of the city's most legally adventurous lawyers. He has sometimes been one of its most troubled, too. In 1981, he gave up his law license after a federal embezzlement conviction. The Virginia Supreme Court reinstated the license 11 years ago." More recently, Garrison has been a leading advocate in Roanoke for gay rights issues, and recently represented a group of men arrested in a Roanoke park in a constitutional challenge to Virginia's sodomy laws.

Another circuit court judge drawing attention to herself?

This article ("Prosecutor cleared of contempt," 4/24/04) in the Fredericksburg paper makes the circuit court judge who brought contempt charges against a prosecutor, on which he was acquitted, out to be something of a problem, citing the views of some lawyers that the contempt charge was embarrassing and rumors that the judge has trouble getting along with others, including her brethren on the circuit court bench.

Va. Supreme Court takes on interlocutory appeal of immunity, limitations issues in water case

According to this report ("Tainted water case goes to Va. Supreme Court," 4/24/04) in the Norfolk paper, the Virginia Supreme Court has agreed to take on a pre-trial appeal of issues including sovereign immunity and the statute of limitations in a case brought by 213 plaintiffs against the City of Chesapeake for tainted city water.

I can't recall any other examples of the Supreme Court taking an appeal under the fairly new statute allowing appeals of interlocutory orders, Va. Code 8.01-670.1, passed in 2002, but this sure seems like a good case for doing so.

Friday, April 23, 2004

When does employee get lost wages even though employer never stopped paying him?

In Bullard v. Alfonso, an opinion by Senior Justice Carrico, the Virginia Supreme Court citing the collateral source rule held that the trial court erred in refusing to allow a personal injury plaintiff to seek lost wages at trial, when in fact the plaintiff's employer never stopped paying him during the six months he was unable to work.

No service under 8.01-288 unless notice of motion for judgment also received

One of the great and mysterious statutes in Title 8.01, the civil procedure volume of the Virginia Code, is Va. Code 8.01-288, regarding service of process. The Code establishes a hierarchy of methods for service of provides, each with its details and specifications, and then comes out in section 8.01-288 and says that the service of process is good if the defendant gets, no matter how or why. The result is that defense lawyers get antsy when their client sends them a fax of the suit papers - a courtesy copy perhaps, faxed or mailed by plaintiff's counsel - with the note that there has been "no service." Yet there are cases, and I have been in at least one, where that faxed pleading was indeed deemed to be served, when the issue came to court. See Doe v. Connors, 796 F. Supp. 214, 218-19 (W.D. Va. 1992) (papers faxed to office in Washington, D.C., deemed served under 8.01-288).

In Lifestar Response of Maryland, Inc. v. Vegosen, the Virginia Supreme Court confirmed at least that there can be no service under 8.01-288 unless the whole process is received, including the Virginia law equivalent of a summons, which in Lifestar and other law cases is a notice of motion for judgment under Rule 3:3.

Virginia Supreme Court upholds trespassing conviction on remand in Hicks

On remand from the U.S. Supreme Court, after being reversed, the Virginia Supreme Court upheld the trespassing conviction of Kevin Hicks on the property of a public housing authority in Richmond, in Com. v. Hicks, an opinion written by Chief Justice Hassell.

The history of the case is this: Hicks was convicted in the City of Richmond
General District Court. He appealed the convictions to the Circuit Court of the City of Richmond where he was convicted. He appealed the judgment to the Court of Appeals. A panel of the Court of Appeals affirmed the judgment, Hicks v.
Commonwealth, 33 Va. App. 561, 535 S.E.2d 678 (2000), but the Court of Appeals, en banc, disagreed with the panel and vacated Hicks' conviction because the Housing Authority's trespass policy contravened the First and Fourteenth Amendments to the Constitution of the United States. Hicks v. Commonwealth, 36 Va. App. 49, 52, 548 S.E.2d 249, 251 (2001). In Commonwealth v. Hicks, 264 Va. 48, 58, 563 S.E.2d 674, 680 (2002), the Virginia Supreme Court held that the trespass policy was overly broad and, therefore, violated the First and Fourteenth Amendments to the United States Constitution. The United States Supreme Court disagreed and concluded that the challenged policy was not overly broad in violation of the First Amendment. Virginia v. Hicks, 539 U.S. 113, ___, 123 S.Ct. 2191, 2199 (2003).

Thursday, April 22, 2004

Nomination of Claude Allen viewed as turning back clock on civil rights

For one sophomore's opinion, there is this piece from the Yale Daily News that says that "using ultra-conservative judicial nominations and extremist legislation to curtail the liberties that Americans have cherished for many years," and cites the nomination of Claude Allen to the Fourth Circuit as one example.

Another of the Warner amendments that was rejected - home school qualifications

The Home School Legal Defense Association had this press release on the General Assembly's rejection of Governor Warner's amendments to the home school bill.

Albemarle judge declares conflict with prosecutors and Public Defender, takes himself of criminal cases

The Richmond paper reports here ("Judge cites conflict with lawyers," 4/22/04) that a Circuit Court judge in Albemarle County has declared that he is out of any more criminal cases because of his conflicts with the offices of the Commonwealth's Attorney and the Public Defender.

The article says that the judge has been on the bench for 18 years. I wonder whether this self-disqualification is the kind of issue that Republican legislators might latch onto if the judge ever seeks reappointment.

Judge rules against total closure of Marcus Vick hearing

The Roanoke Times reports here ("In written decision, judge rules Vick trial to be open to the public," 4/22/04) that a juvenile and domestic relations district court judge in Montgomery County has denied requests to close the hearing of criminal charges against Virginia Tech football player Marcus Vick.

High school football coach acquitted of battering player

The Roanoke paper reports here ("Jury acquits former Patrick Henry coach," 4/22/04) on the acquittal of a high school football coach on charges of battering a player on his team.

Warner amendments rejected, with veto-proof numbers on anti-gay union bill

The Roanoke paper reports here ("Warner's amendments die in House," 4/22/04), the Richmond paper reports here ("Assembly's vote bans same-sex unions in Va.," 4/22/04), the Norfolk paper reports here ("Lawmakers restore full ban on gay unions, partnerships," 4/22/04), the Washington Post reports here ("Assembly Rebuffs Warner Amendments," 4/22/04), the Washington Times reports here ("Legislature rejects bill revisions by Warner," 4/22/04), and the AP reports here that the General Assembly rejected Governor Warner's amendments to the bills on gay partnerships, abortion, the 21-day rule, and tobacco money.

Wednesday, April 21, 2004

No error where government waives peremptories to ensure enough in panel to pick jury

In U.S. v. Stanley, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Michael, and King affirmed the verdict in a case tried before Judge Jones, where the issues raised on appeal included the defendant's claim that the jury was not properly seated, since the strikes for cause whittled down the jury pool to 25, and the government waived three of its peremptory strikes so that the defendant could have 10 of his peremptories and a jury of 12 could still be had.

Fourth Circuit affirms summary judgment for ATF on gun shop's complaint about letter

In Blaustein & Reich, Inc. v. Buckles, the Fourth Circuit in an opinion by Judge Shedd joined by Chief Judge Wilkins and Judge Niemeyer affirmed summary judgment for the federal Bureau of Alcohol Tobacco & Farms (as it was formerly known) on a gun shop owner's complaint about a letter the plaintiff and 400+ other gun shops received from ATF demanding information about secondhand gun sales.

Judge Wilson finds consent to search vehicle of foreign national with methamphetamine

In U.S. v. Barrera, Chief Judge Wilson of the W.D. Va. denied the defendant's motion to suppress, concluding that the law enforcement officers did not unlawfully detain the defendant and had consent to search the defendant's vehicle, in which they found methamphetamine. In part, the Court rejected the defendant's claims that he did not understand English very well. Also, the Court concluded, "the simple fact that Barrera was Mexican lends no support to the allegation that Meredith knew Barrera felt compelled to remain and answer his questions."

In a footnote, the Court noted the following: "Barrera also claims that the evidence obtained should be suppressed because officers did not notify him of his rights under the Vienna Convention on Consular Relations. Although the Vienna Convention requires officers arresting a foreign national to inform him of his right to contact his consular, suppression of evidence is not a proper remedy for violations of the treaty. United States v. Lawal, 231 F.3d 1045, 1048 (7th Cir. 2000); United States v. Lombera-Camorlinga, 206 F.3d 882, 883-84 (9th Cir. 2000). Therefore, the court rejects Barrera’s claim."

Profile of NC judge long-ago nominated to Fourth Circuit with no vote in sight

Via How Appealing, the Raleigh paper has this profile of Chief Judge Terrence Boyle of the E.D.N.C., who was nominated to the Fourth Circuit about 3 years ago but the Senate has yet to act on his nomination.

More on the case of the Virginia lawyer accused of murdering neighboring farmer

Via VLW, the Fredericksburg paper has this report ("A feud carried too far," 4/21/04) and the Richmond paper has this report ("Rural feud, wayward bull - and death," 4/21/04) on the case of the Virginia lawyer accused of murdering a neighboring cattle farmer in a dispute over a wayward bull.

New overtime rules

This post ("Big news day for overtime pay reform issue") from George's Employment Blog is chock full of links about the new Department of Labor overtime rules, including a link to this DOL page on the new rules.

More on that 9th Circuit arrest case

From SCOTUSBlog, these are the questions presented in the Devenpeck v. Alford case:

Under the Fourth Amendment's objective reasonableness test, an arrest is deemed "reasonable" if there is probable cause to believe that a violation of law has occurred. Two judicial circuits find an arrest reasonable if, based on an objective assessment by a reasonable officer, there is probable cause to arrest for any offense. On the other hand, at least five judicial circuits find an arrest to be reasonable only if there is probable cause to arrest for crimes "closely related" to the crime or crimes articulated by the arresting officer. This case presents the following questions:

1. Does an arrest violate the Fourth Amendment when a police officer has probable cause to make an arrest for one offense, if that offense is not closely related to the offense articulated by the officer at the time of the arrest?

2. For the purpose of qualified immunity, was the law clearly established when there was a split in the circuits regarding the application of the "closely related offense doctrine", the Ninth Circuit had no controlling authority applying the doctrine, and Washington state law did not apply the doctrine?

Tuesday, April 20, 2004

Convicted felon goes 0-20 on appellate issues in divorce case

The opinion in Budnick v. Budnick might be used as a case study in all the different ways to lose on appeal - with 20 issues raised, some were rejected because no authority was cited for them in the appeals court, some were waived in the circuit court, some were never raised in the circuit court, and most of the issues decided on the merits had to do with the fellow arguing in essence that his felony convictions shouldn't be held against him in a way that would take money away from him and give it to his ex-wife and children.

Expert testimony from SANE on causation admissible without threshold showing of reliability

In Beale v. Com., the Court of Appeals in an unpublished decision for the panel of Judges Elder and Felton and Senior Judge Coleman rejected the defendant's challenge to admissibility of the testimony of a Sexual Assault Nurse Examiner on the issue of how the victim's injuries were caused, where the defendant claimed that the circuit court erred by not making preliminary findings as to the reliability of the expert's theories and methods. The opinion says: "we find the scientific method offered by the Commonwealth was of a kind so familiar as to require no such preliminary finding of reliability" and also that "Appellant’s assertion that the science behind Towne’s testimony was unreliable raises an issue of weight, not admissibility." The panel noted that the Court of Appeals "recently held that a SANE may "express an expert opinion on the causation of the injuries in the context of an alleged sexual assault . . . [and] offer[] her expert opinion as to [the victim’s] injuries in terms of whether or not her injuries were consistent or inconsistent with consensual sexual intercourse," citing Mohajer v. Commonwealth, 40 Va. App. 312, 320-21, 579 S.E.2d 359, 364 (2003).

Horse race declared - Baril raises $250,000 at one event

Richmond lawyer Stephen Baril raised $250,000 at the kick-off fundraiser for his campaign to be the next Republican Attorney General, according to this report ("GOP hopeful raises $250,000," 4/20/04) in the Richmond paper.

Virginia lawyer charged with murder

Via VLW, the AP reports here that a Virginia lawyer has been charged with murdering his neighbor in Caroline County.

V-P Chaney almost comes to Ninth District to endorse Triplett as good horse flesh

The Roanoke Times reports here ("Dick Cheney gives speech at fund-raiser for Triplett," 4/20/04) and the Richmond paper reports here ("Cheney boosts underdog in 9th," 4/20/04) and the AP reports here that Vice-President Dick Cheney made it as far as Roanoke, which is not in the 9th District, to give a speech for Republican candidate Kevin Triplett, who is running against Rep. Rick Boucher.

The AP story quote the Vice-President as saying, "I've come to recognize good horse flesh."

UPDATE: Here is the text of the Vice-President's speech from the White House website - apparently the good horse flesh was Congressman Bob Goodlatte, or Congressman Bob Goodlatte is also good at recognizing it.

But Your Honor, the banana wasn't even loaded

A Southwest Virginia man was convicted of brandishing a firearm for waving what witnesses thought was some sort of contraption but was in fact a banana, according to this report ("Banana leads to man's firearm conviction, 4 days in jail," 4/20/04) in the Roanoke Times.

Why didn't Dr. Richard Kimble think of this?

David Kim Stanley, wanted in Wise County, filed a pro se civil suit in Eastern District of Tennessee seeking injunctive relief against Wise County Circuit Court Judge Robert Stump and Wise County Circuit Court Clerk Jack Kennedy, among others, as reported here ("Stanley apparently in Tennessee," 4/15/04) in the Coalfield Progress.

The article offered no ideas about how Stanley planned to proceed in the case without being arrested.

Wise County defenses in the refiled landfill fee case

The Coalfield Progress has this account ("Wise County files response in landfill fee case," 4/15/04) of defenses raised by the County in the landfill fee case that refiled in state court after Judge Jones dismissed it from federal court under the Tax Injunction Act.

As expected, the County is not conceding the point that there is a state law remedy.

Monday, April 19, 2004

Judge Jones' ruling overturning arbitrator affirmed

In Kennemetal, Inc. v. United Steelworkers, Judge Jones reversed and remanded an arbitrator's decision, on an issue of whether a benefit plan was part of the collective bargaining agreement. Here, the Fourth Circuit upheld Judge Jones' decision, with a per curiam opinion for the panel of Chief Judge Wilkins, Judge Motz, and Judge Traxler.

Dismissal affirmed on claims of phony made in America advertising for crab cakes

In Made in the USA Foundation v. Phillips Foods, Inc., the Fourth Circuit in an opinion by Judge Michael joined by Chief Judge Wilkins and Judge Widener affirmed dismissal of the claims against a seafood company that advertised its crab cakes sold to grocery stores as "made in America," though they contained a high percentage of imported crab meat.

You're disqualified! Virginia teen booted from DECA contest for allegedly rude display

This Washington Post article ("Debatable Victory Dance Costs Teen Chance to Compete," 4/19/04) questions the decision of Fairfax County teachers who disqualified a young man from the international DECA competition.

The article says that "some teachers in the audience told him that they were mortified by the angle at which he held the trophy. They accused Sanders of intentionally displaying it as a phallic symbol, making a mockery of the contest and embarrassing his school, George C. Marshall High School in Falls Church. As punishment, he will not be allowed to compete in the next round next month, at an international career development conference in Tennessee."

Does it matter so long as police have probable cause to arrest you for something?

As shown here, the Supreme Court has granted certiorari to review the decision by the Ninth Circuit in Alford v. Haner, in which (incredibly) the Court of Appeals reversed the district court for failing to grant the plaintiff a new trial after a defense verdict. The plaintiff claimed that he was arrested for something that is not illegal, while the police claimed that they had probable cause to arrest for other crimes.

You sometimes see cases reversed where district courts have improperly granted summary judgment, but I don't remember ever reading in 10-12 years of studying section 1983 litigation a seizure case reversed after a defense verdict.

Sunday, April 18, 2004

Desegregation and the closing of black public schools

The Norfolk paper has this provocative article ("The downside of desegregation," 4/18/04) on how one effect of desegregation of the public schools follow Brown v. Board of Education was that black schools were closed and black students shipped to white schools.

More on illegal snake handling in church in Virginia

The Roanoke paper has this story ("For snake handlers, going to church can prove deadly," 4/18/04), following up on the death of a Lee County minister who was bitten and died, with more on the illegal practice of snake handling in church.

Are federal prosecutors too aggressive in death penalty cases?

The Roanoke Times wonders here ("Spurt of acquittals raises concerns," 4/18/04), in the wake of the acquittals in the Church and Gilmore case and the dismissal in the Shenandoah National Forest case, whether federal prosecutors are going overboard in their pursuit of the death penalty. The article quotes an unnamed former prosecutor as saying, "If we're turning the corner from failing to get the death penalty to failing to get convictions, that's got to be of great concern." A South Carolina defense lawyer said of the W.D. Va. cases that he "found it striking" that "there have been two major meltdowns of major capital cases in a single district within three months of each other."

UPDATE: The Richmond paper has this article ("LETTER FROM FROM SOUTHWEST VIRGINIA - Man's acquittal vindicates juror who stuck to her convictions," 4/18/04) on the woman from Buchanan County who held out alone for an acquittal at the prior Church trial in 2002, and how his acquittal leaves her feeling vindicated.

American Ass'n for Nude Recreation responds to Governor Warner's comments

According to this press release, the American Association for Nude Recreation denounced Governor Warner's jokes about the juvenile nudist camp law, stating, among other things, "we can't think of a stronger argument for programs that promote wholesome body acceptance than the fact that Virginia's highest office is helpless to discuss this subject without reverting to vocabulary more fitting for a college frat house than the state house."