Saturday, May 15, 2004

Delegate Bryant's telecom tax bill would take effect 2005

The Lynchburg paper has this article on a new telecom tax law in Virginia sponsored by Delegate Bryant, and which will take effect July 1, 2005. The article suggests the change in the law would lower telecom taxes in the cities and raise telecom taxes in low-tax rural areas.

What was passed this year and signed by the Governor was HB 1174, titled "An Act to establish a schedule for, and initiate Virginia's transition to, a new system for taxing telecommunications services in the Commonwealth." This "schedule" says that in the 2005 General Assembly, localities and the state will get together on the details of "a yet-to-be-named tax on all retail telecommunications service revenues," which tax "shall not be less than 4.5 percent and to the extent the state and local retail sales and use tax rate is greater than 4.5 percent, the tax may not exceed the state and local retail sales and use tax rate," and "will be assessed in lieu of any other state or local sales and use tax."

Mother at 15, law school graduate at 27

The Richmond paper has this profile of a young woman who had a child when she was 15 and is about to graduate this weekend from the law school at William & Mary.

The article quotes Professor Urbonya from the law school, who was there sometime after my time, but who is one of my favorites because she writes about section 1983 litigation. (I sent to her my articles on section 1983 litigaiton and she humors me by responding that she has read them.)

En route from prison to halfway house, inmate stops to rob convenience store

The Roanoke paper has this report ("Inmate gets quick trip back into prison," 5/15/04) about a man who was convicted of stopping to rob a convenience store, on the day he was released from prison, while traveling to a halfway house.

The article notes that after robbing the store, the man went on to the halfway house.

Man accused of killing and dismembering teenagers sues police and prosecutors in E.D. Tenn.

According to this report ("Willis files $4 million lawsuit against police, prosecutors," 5/15/04) in the Kingsport paper (registration required), the criminal defendant "who is accused of killing and cutting up two Georgia teens and storing their bodies in a Johnson City storage facility - has filed a $4 million lawsuit claiming his civil rights have been violated."

More on the DNA in the Earl Washington case

The Richmond paper has this report on the contradiction between the Commonwealth's DNA testing and the DNA testing performed by Dr. Edward Blake in connection with finding who was the real killer in the Earl Washington case.

Closing in on age 400, Jamestown lumbers toward getting organized

When I was in law school at Williamsburg, I went several times to Jamestown Island, a good place to see not costumed characters but deer, crabs, and muskrats (and archaeological digs). I never went to Jamestown Settlement, the state-run outfit. According to this report ("Which Jamestown(e) are we talking about?," 5/15/05) in the Daily Press, joint tickets for these two places are about to be sold, for the first time since 1957.

Friday, May 14, 2004

New Va. budget viewed as bucket of slop

The Blue Ridge Business Journal has this commentary based on quotes from business lobbyists who want the Republican "nuts" out of the legislature.

Southwest Virginia as the birthplace of osteopathic medicine

According to this report ("A feeling in the bones," 5/13/04) on the new medical school in Blacksburg, osteopathic medicine was the idea of a doctor from Lee County, who decided on a new way of doing things in 1864.

Re-indictment in nine year-old murder case leads to charges and countercharges

The Leesburg paper has this interesting account ("Man Charged With Murder Will Remain Jailed; Judge Criticizes Public Defender," 5/14/04) of goings on in a murder case, where the defendant was tried as a juvenile, released based on a Virginia Supreme Court ruling, reindicted years later as an adult after the Virginia Supreme Court changed its mind, and now the public defender is riling the circuit court while accusing the prosecutor of grandstanding.

Tech QB Vick gets 30 days from Montgomery County J&DR court

The AP has this report, the Richmond paper has this report ("Vick, Two Other Tech Players Convicted," 5/14/04), and the Washington Post has this report ("3 Va. Tech Football Players Get Jail Time," 5/14/04) on the outcome in juvenile court of the criminal case against Marcus Vick and others. The report says: "Vick, brother of Atlanta Falcons quarterback Michael Vick, was sentenced to 30 days in jail and was fined $2,250 on three counts of contributing to the delinquency of a minor."

Dismissal of residential real estate case under Rooker-Feldman doctrine affirmed

In Shooting Point, LLC v. Cumming, the Fourth Circuit in an opinion by Judge Gregory, joined by Judges Niemeyer and Williams, upheld the dismissal based on the Rooker-Feldman doctrine of plaintiffs' section 1983 claims that were inextricably related to their state court dispute about their real property. The state court case ended in an appeal, 265 Va. 256, 576 S.E.2d 497 (2003).

Reassignment not adverse employment action

In James v. Booz-Allen & Hamilton, Inc., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Traxler and Shedd, concluded that under the circumstances of the case, the employer's reassignment of the plaintiff was not an adverse employment action on which a Title VII claim of race discrimination could be based.

Suing all the judges and the lawyers didn't help

In Vance v. Williams, Chief Judge Jones of the W.D. Va. dismissed for failiure to state a claim the plaintiffs' suit against two circuit court judges and three area lawyers.

Wow, motion to quash service granted

In DirecTV, Inc. v. Mullins, Chief Judge Jones of the W.D. Va. granted the motion by one of the plaintiffs to quash service of process.

I would not have thought this was possible, in light of Va. Code 8.01-288 - but then again, the defendant is saying the papers were served at the wrong house, maybe his son-in-law threw them out rather than sharing them with the rest of the family.

Federal judges and marriage

As reported here by the AP, a federal judge in Massachusetts rejected a last-minute effort to enjoin officials in that state from performing same-sex marriages. The plaintiffs vowed an appeal to the First Circuit.

Completely unrelated to this, I read recently of a marriage ceremony that was performed by a U.S. District Court judge in Virginia. Under Va. Code 20-25, "Any judge or justice of a court of record, any judge of a district court or any retired judge or justice of the Commonwealth or any active, senior or retired federal judge or justice who is a resident of the Commonwealth may celebrate the rites of marriage anywhere in the Commonwealth without the necessity of bond or order of authorization."

More on federal court budget crisis

This article from describes the current budget crisis in the federal courts, that could lead or has led to decreased service, staff lay-offs, and suspension of jury trials when there is no money to pay jurors.

Fees for lawyers in class action over fiber may get $6.7 million

The lawyers for a class of property owners who sued Dominion Resources for using powerline easements for telecommunications lines are asking for $6.7 million in fees, according to this story ("Lawyers may get $6.7M for lawsuit," 5/14/04) in the Daily Press.

Thursday, May 13, 2004

Terrible lawyer shortage in North Carolina leads to new law school efforts

According to this report, the impetus for the several new law school projects in North Carolina is that so many law students from schools in other states take the North Carolina bar examination. Perhaps Virginia is one of the leaders in exporting young law grads to the Tarheel state.

How Northern Virginians say their area made out under the budget

Unlike the Southwest Virginia legislators who all agreed that this area made out well under the new budget, this Washington Times article ("Budget weighs on Northern Virginia," 5/13/04) shows a greater diversity of opinion among Northern Virginia legislators as to how well their area fared.

What's up with verdicts in employment discrimination cases

George's Employment Blog wonders here over the difference between two sexual harassment verdicts, one for $50,000 and one for $15,000,000.

Of course, as in the Long Island case, you can't get $15,000,000 in punitive damages either under Title VII or under Virginia law.

Judges relying on Google

Via Inter Alia, I read this CNet article on the increasing if not always enlightened use by judges of Internet search engines such as Google.

Wednesday, May 12, 2004

More on the new Virginia anti-gay partnership law

Overlawyered has this post with many links to commentary on the new Virginia statute which in some sense outlaws agreements of all kinds between people of the same sex.

District Court cannot decide class certification issue based solely on allegations in complaint

In Gariety v. Shannon, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judge Shedd and Senior Judge Hamilton, held, among other things, that the trial court erred in disposing of the issue of whether to certify a class under Rule 23 by relying solely on the complaint and without making the requisite "findings" based on the evidence.

The Crooked Road - Virginia's Heritage Music Trail

For country music fans, The Crooked Road covers places of interest in Southwest Virginia, including the Birthplace of County Music right here in Bristol.

This past week, the Coalfield Progress had an article by John Mongle on the Bristol Sessions, at which legend has it that country music was first recorded in 1927.

Recount in race to be mayor of Gate City

The Scott County paper reports here that the loser is seeking a recount of the vote for the position of mayor of Gate City, where the vote on May 44 was 357 to 355.

The winner carried the absentee vote 219 to 20.

Chiropractors declare vehement appeal to be taken

According to this press release, the American Chiropractors Association "will vehemently appeal" to the U.S. Supreme Court, if necessary, their claim against Trigon, on which Judge Jones of the W.D. Va. granted summary judgment, affirmed last week by the Fourth Circuit.

Former Miss Virginia graduated from law school over the weekend

The Richmond paper reported here ("Off the stage and into the courtroom, finally," 5/9/04) on this past weekend's graduation of Miss Virginia 2000 from the law school at the University of Richmond.

More on Republican candidate for lieutenant governor, Bill Bolling

This article gives a mostly favorable account of Bill Bolling, Republican candidate for lieutenant governor, current a member of the Senate.

City of Richmond weighs whether to pay police detective's criminal defense fees and costs

In this report ("Detective's legal fees in dispute," 5/12/04) from the Richmond paper, the City is trying to decide whether to pay for the criminal defense of a police detective who was tried, then retried and acquitted on murder charges related to the shooting of an unarmed suspect.

Appeal granted for review of immunity of Western State doctor

Via VLW, the Roanoke Times reports here ("Va. Supreme Court to hear appeal over death at hospital, 5/12/04) on the decision of the Virginia Supreme Court to grant the petition for appeal in a wrongful death case against a physician who was employed at the Western State Hospital in Staunton.

Isabel victims file class action over federal flood insurance program

Via VLW, the Norfolk paper reports here ("Class-action suit filed over claims from Isabel," 5/12/04) on a class-action filed on behalf of the victims of Hurricane Isabel in federal court in Maryland, claiming mishandling of flood insurance claims.

Immigrants as victims of new law requiring legal residence for driver's license

This article ("Hardships Cited In Va. License Law," 5/12/04) suggests that a new Virginia law designed to make it more difficult for illegal immigrants to get Virginia driver's licenses is in fact making it more difficult for illegal immigrants to get Virginia driver's licenses.

Tuesday, May 11, 2004

New novel about closing the schools in Prince Edward County

Today's Christian Science Monitor has this review of a new novel called Prince Edward, the Virginia county that closed its schools for decades to avoid desegregation.

Summary judgment against chiropractors affirmed in Trigon case

In American Chiropractic Association, Inc. v. Trigon Healthcare, Inc., the Fourth Circuit in an opinion by Judge Karen Williams, joined by Judge Michael and District Judge Quarles, affirmed Judge Jones' ruling in the W.D. Va. suit filed by the association of chiropractors claiming that Trigon and others wrongfully conspired with doctors and others to harm the chiropractors.

The decision by Judge Jones is here.

Why do they want the draft orders in WordPerfect?

In the "Administrative Procedures for Filing, Signing and Verifying Pleadings and Papers By Electronic Means" for the W.D. Va., one proviso is that draft orders can be sent to the judges by e-mail but they must be in WordPerfect format and cannot be in PDF format - "All proposed orders must be submitted in a format compatible with WordPerfect, which is a 'Save As' option in most word processing software. Judges will not accept proposed orders in .pdf format."

Opposition to Haynes nomination relit by Iraqi prisoner treatment news

The Richmond paper reports here (".com | Court nomination in jeopardy," 5/11/04) that Senate opponents of the nomination of William J. Haynes to the Fourth Circuit are now wanting to know what if anything he had to do as General Counsel for the Defense Department with the interrogation techniques applied to Iraqis by U.S. soldiers and contractors at the prisons in Iraq.

Southwest Virginia as budget winner

The Coalfield Progress has this article quoting the views of Southwest Virginia legislators that the budget turned out favorably for this area.

What happens when new government leaders are elected to oppose last regime's projects?

The Washington Post reports here ("In Va. Election, Wal-Mart Is the Common Foe ," 5/10/04) on the election of officials in Front Royal opposed to the siting of a new Wal-Mart.

Last week, the Roanoke paper reported here ("Blacksburg Town Council to consider rejecting sewer bids, 5/8/04) (and elsewhere) on the election results in Blacksburg, where anti-sewer candidates were elected.

Locally, in Bristol on the Tennessee side, this week may see the next step in the recall campaign against three city councilmen, who themselves were elected in reaction to the city's handling of Wal-Mart related issues. The new majority on council ousted the city manager, prompting a citizen group to begin a recall petition campaign.

The Vick case and the role of the AD at Tech

The Norfolk paper reports here ("Vick case spotlights Tech's athletic policies," 5/11/04) on the spotlight put on Virginia Tech's athletic director in dealing with the criminal charges against some Tech football players.

New Tech class with higher grades and test scores, less diversity

The Roanoke paper reports here ("Incoming class at Tech smarter but less diverse," 5/11/04) that the incoming class for next fall at Virginia Tech has higher numbers but includes fewer members of racial minority groups.

Proposed amendments to Virginia procedure rules

Here are proposed amendments to the Virginia rules of court, including an amendment dealing with the conduct of depositions, in particular targeting speaking objections, in the manner of the revised Rule 30 of the Federal Rules of Civil Procedure.

The one speaking objection, if it can be called that, that always bugged me is when I ask a question and the other lawyer says "if he knows," so then the witness says, "I don't know." Is that part of a playbook out there somewhere, of which I never got a copy?

Monday, May 10, 2004

Commentary on the latest in the Earl Washington case

The Norfolk paper had this editorial ("State pursues leak, not lead, in murder case," 5/9/04) criticizing the Commonwealth's pursuit of leakers of information rather than the real killer in the Earl Washington case.

Sunday, May 09, 2004

The big fight continues about how the bad evidence got in the jury room in the Lentz case

Monday's Washington Post has this lengthy review ("Lentz Case Sends Chill Through Federal Courthouse," 5/10/04) of the swirling controversy over how evidence that was not admitted in the case got into the jury room, leading to the guilty verdict that was then overturned in the Lentz case in Alexandria.

Judge Clarke of E.D. Va. dies at age 83

The Norfolk paper reports here ("Judge Joseph Calvitt Clarke dies; noted for work in maritime, spy cases," 5/7/04) on the passing of Judge J. Calvitt Clarke, Jr., of the U.S. District Court for the Eastern District of Virginia. Judge Clarke sat in Norfolk and was appointed by President Ford in 1974.

Kaine v. Kilgore on tax increases

The Roanoke paper had this story ("Heavyweights go toe-to-toe over taxes," 5/9/04) describing the different viewpoints of next year's likely gubernatorial nominees, Lieutenant Governor Kaine and Attorney General Kilgore, on the tax votes in this year's General Assembly session.

Judge Williams rejects challenge to cutting trees in Jefferson National Forest

In The Clinch Coalition v. Damon, Judge Glen Williams of the W.D. Va. granted the defendants' motion for summary judgment in a declaratory judgment action brought by environmental groups to challenge the cutting of trees in 600+ acres of the Jefferson National Forest. On Friday, the AP had this report on Judge Williams' decision.

More on SOLs and graduation

The Washington Post has this article ("Va. Students, Educators Await Results From First Year of SOL Tests," 5/9/04) on students and educators waiting to see how many Virginia seniors don't graduate this year because they failed to pass one of the Standards of Learning requirements.

Commentary on relative pay raises for law enforcement and judges

This column from the Daily Press quotes one delegate on pay raises for judges:

"Why is it that someone who puts their life on the line every day gets a 3 percent raise and someone who sits butt-naked in a black robe gets 5 percent?" asked Del. John J. Welch, R-Virginia Beach. "It's because some of those senators are going to be judges; don't kid yourself."

How often do you have a hundred-year flood?

Based on two articles by Jeff Schapiro in today's Richmond paper (one co-written by Pamela Stallsmith), it appears that every fifty years there is a leadership meltdown in the General Assembly. In this story ("Was tax-rise bloc a fluke?
, 5/9/04), most of those interviewed declared this year's tax vote coalition won't happen again. In this story ("POINT OF VIEW: A look at the past may offer a glimpse of future," 5/9/04), the tale is told of a legislative stand-off in 1954 over a budget surplus.

Staunton paper - Budget impasse was histrionic, not historic

According to this editorial from the Staunton paper, the only thing historic about the taxing and spending fight in this year's General Assembly session was "how acrimonious, arrogant and inflexible this session was, thanks to the histrionics of the 'no tax' crowd."

More McSweeney on taxes

This commentary from the former Republican chairman says some legislators want another special session to raise taxes to pay for transportation, which he says is "further evidence that the only sure result of a tax increase is pressure for even more tax increases."

Navy wife sues to get UE benefits after quitting job to follow husband

The Norfolk paper reports here ("Navy wife challenges employment commission," 5/9/04) and the AP reports here that the wife of a Navy man has filed suit in state court in Chesapeake challenging the denial of unemployment benefits after she gave up her job in Virginia when her husband was transferred to Hawaii. The article notes that "Virginia is one of several states that block military spouses from collecting unemployment benefits if they leave their job because of a military relocation."

Discovery of police files ordered in Charlottesville malicious prosecution case

The Charlottesville paper reports here ("Police to release deputy's files," 5/9/04) on a ruling by the Circuit Court in Charlottesville on discovery of police files in connection with a malicious prosecution case against a former sheriff's deputy.

Boucher's DMCRA bill gets May 12 hearing

This post from Slashdot describes the media industry opposition to the bill from Southwest Virginia's own Congressman Boucher, called the Digital Media Consumers Rights Act, which is set for a hearing this week before the House Subcommittee on Commerce, Trade, and Consumer Protection.

Judge William Pryor addresses Regent law school commencement

Via How Appealing, the Richmond paper has this report ("At Regent, judge encourages faith," 5/9/04) on the commencement address delivered by U.S. Court of Appeals Judge William Pryor at the Regenet University law school in Virginia Beach.

Remote access

While in San Francisco, I did have occasion to access my desktop computer in Southwest Virginia via GoToMyPC, and it worked great (as it generally does).

Planes, trains and automobiles

I had a big time in San Francisco, and as always when I travel, it was a curious combination of the frugal and the extravagant. I flew out of Charlotte to get a cheaper plane ticket (three hour drive), parked in the satellite parking way out yonder ($13.25 from Tuesday to Saturday), took BART to and from the Oakland airport ($5.15 one way), bought a MUNI pass ($20) and went out of my way to ride everywhere on the cable cars (not that they go everywhere), and still spent a pile of money - mostly on food, even though the amount of food given away in connection with the event I attended was incredible.