Saturday, May 29, 2004

Online petition opposing Fourth Circuit nominee Haynes

TalkLeft has this post with a link to an online statement people can join in opposition to William Haynes, whose nomination to the U.S. Court of Appeals for the Fourth Circuit has become a lightning rod for opposition to Defense Department policies.

Commentary on defense of the poor in criminal cases in Virginia

This piece ("Assembly-Line Justice: Study Is Indictment Of State Program For Poor Defendants," 5/28/04) from the Loudoun paper says the system for defending indigent criminal defendants in Virginia is lousy, based on an ABA study.

Jesse Helms school of government comes to Virginia

The Lynchburg paper reports here ("Government school will be named for Jesse Helms," 5/29/04) that the new school of government at Liberty University will be named after former U.S. Sen. Jesse Helms.

Defense verdict in Lynchburg malpractice case

The med mal case that caught the eye of the Lynchburg paper resulted in a defense verdict, as reported here ("Jury clears doctors in civil suit," 5/29/04).

Ah, Chris Greene Lake

When I was at U.Va., we went to Chris Greene Lake, which as reported here is open this weekend.

My wife is ready to go to the beach, but probably not to a place what we called "Chris Greene Fake Beach." We weren't too particular back in those days.

Police officers flirt with contempt of court with their reactions to criminal sentence

The Norfolk paper reports here ("Officers' reaction to sentence draws response from judge, chief," 5/29/04) on how the reaction of two police officers to the criminal sentence handed down against a man who came at them with a knife may get them into trouble with the Court.

Virginia ACLU defends baptisms in the Rappahanock

The Richmond paper reports here ("ACLU defends river baptisms," 5/29/04) that the Virginia ACLU has warned park officials in Fredericksburg "not to discriminate against religious groups, after a park official told a pastor to stop baptizing congregation members in the Rappahannock River."

U-turn on Interstate 81 leads to conviction for haulers of 500 pounds of marijuana

According to this report ("R.I. father-son pot shipping tandem gets prison time in Va.," 5/29/04) in the Roanoke paper, the arrest of a father and son driving marijuana across the country was the result of their making an illegal u-turn with their tractor-trailer through the median on Interstate 81.

Federal court suit contemplated against Bedford over water contamination

The Roanoke paper reports here ("Man is on way to suing Bedford for not cleaning contaminated water," 5/29/04) on a federal environmental lawsuit being prepared by a property owner to be filed against the City of Bedford for contaminated water.

Murder charge thrown out in case of missing boy

The Roanoke Times has this article ("Judge throws out murder charge," 5/29/04) on Judge Colin Campbell's ruling dismissing the felony murder charge in a criminal case being tried in Grayson County regarding the fate of a missing boy.

BMS wins appeal

The Johnson City paper has this article ("Lawsuit filed by former owner of BMS dismissed," 5/29/04) on the reversal in a Tennessee Court of Appeals of a lower court verdict in favor of Larry Carrier against Speedway Motorsports regarding the Bristol Motor Speedway. The opinion in Carrier v. Speedway Motorsports, Inc. is available here.

Friday, May 28, 2004

More on what Governor Warner knew and when he knew it about the surplus

This column from the Daily Press says insiders knew all along that Governor Warner was low-balling revenues during the General Assembly session.

Kerry throws money down the drain for TV ads in Virginia

The gist of this AP article is that John Kerry is willing to blow some of his cash on advertising in Virginia, but all the experts and pundits and such say it's wasted money because he cannot possibly win here (without carrying about 47 other states).

Unfortunately, the majority of our local TV stations are in Tennessee, so we might get campaign ads from there even if there are none in Virginia.

The tougher new DUI laws

Here ("Tougher DUI laws are official," 5/28/04) is the Norfolk paper's attempt to make sense of the new DUI laws.

I would have to say that 25 new DUI laws in one year evidences a fundamental incoherence in the legislature's approach. Why so many different, incremental changes in the law?

On a medical malpractice case being tried in Lynchburg

The Lynchburg paper has this report ("Malpractice suit expected to go to jury today," 5/28/04) on the trial of a malpractice case against two obstetricians, naming Trey Smith as one the lawyers, Trey being the one individual who went to elementary school, college, and law school at the same time and same place as I did.

Thursday, May 27, 2004

On the possibility that the innocent get convicted in Virginia

This column in the Daily Press argues that the General Assembly ought to be more concerned about allowing post-conviction relief for persons who have been wrongfully convicted.

Virginia still AAA

After all that fun in the General Assembly, it would have been a bummer if the Commonwealth's bond rating was demoted, but it wasn't, according to this report ("Virginia Retains AAA Bond Rating, Officials Say," 5/27/04) in the Washington Post.

Review of latest fiction by Circuit Court Judge Martin Clark

A Memphis publication has this review of the latest novel, called Plain Heathen Mischief, by Circuit Court Judge Martin Clark. Judge Clark also wrote The Many Aspects of Trailer Park Living. Judge Clark holds court in the 21st Circuit, which includes Martinsville, Henry County, and Patrick County.

Western State mental hospital administrators protected by sovereign immunity from negligence claims

In Sandler v. Barber, Judge Wilson of the W.D. Va. held that administrators of the Western State mental hospital were protected from liability on the pro se plaintiff's negligence claims by the doctrine of sovereign immunity.

In a footnote, the Court noted that plaintiff did not allege negligent supervision, and even if he had, there was no such claim in Virginia law.

Free print-to-PDF software

At this week's Bristol Bar meeting, Magistrate Judge Sargent was on hand, and put in the good word for electronic filing. One element of electronic filing is converting word processing documents to PDF files. Here is another print-to-PDF program that has a free version that is not too annoying, pdf995, and a for-pay version that is not too expensive. The related programs include one that will convert PDFs to other formats.

More on Walton and Nelson v. Campbell

In the latest Walton v. Johnson, Judge Wilson of the W.D. Va. indicates that the U.S. Supreme Court's opinion in Nelson v. Campbell does not change his ruling with respect to Percy Walton.

In fact, I would think that Nelson reinforces the denial of relief at this time, the Nelson case would seem to give Walton an additional means under section 1983 of challenging the method of his execution, once the stay is lifted once again.

As I am largely ignorant of habeas corpus law, I read Nelson and thought well of course you can litigate the method of your execution as a separate case from litigating whether you should be executed at all.

What did Governor Warner know and when did he know it about surplus

The Coalfield Progress has this article by John Mongle interviewing some Republican delegates about how knowledge of the estimated $300 million surplus would have affected the tax and budget bills argued in this past session of the General Assembly.

Wednesday, May 26, 2004

En banc Fourth Circuit reverses Rule 11 sanctions, on procedural issue not raised in D.Ct.

In Brickwood Contractors, Inc. v. Datanet Engineering, Inc., the Fourth Circuit sitting en banc reversed the district court's award of Rule 11 sanctions. The Court's opinion was written by Judge Traxler, joined by Chief Judge Wilkins and Judges Wilkinson, Niemeyer, Williams, Michael, Motz, Gregory, Shedd, and Duncan. Judge Widener, who wrote the opinion for the panel, wrote a separate concurring opinion, and als Judges Luttig and King concurred in the judgment and wrote separate opinions.

The big issue in the opinions that came out today is not so much whether the district court erred but rather whether the issue of failure to comply with Rule 11's procedural requirement by not being raised in the District Court precluded appellate review.

Abingdon death case cited in article on neglect and abuse in nursing homes

This Washington Post article ("Virginia Rarely Prosecutes Cases of Neglect, Abuse," 5/26/04) begins with an account of a death in Abingdon, and goes on to describe how rarely cases of neglect and abuse are prosecuted.

Second Muhammad trial to go forward in Fairfax County

The Washington Post reports here ("Muhammad To Be Tried In Fairfax Sniper Case," 5/26/04) that a second trial of sniper Muhammad will proceed in Fairfax County. Muhammad was already sentenced to death in a Prince William County case.

Accusation of cheating on the SAT

The Norfolk paper has this report ("SAT improvement triggers devastating accusation," 5/26/04) about a student who was investigated for cheating on the SAT when she took it the second time and her score went up substantially.

VDOT includes Coalfield Expressway in list of proposed cuts

The Richmond paper reports here ("VDOT flags 186 projects for cuts," 5/26/04) on projects VDOT says it can afford, including $19.9 million for the Coalfield Expressway.

I expect that VDOT is posturing to get votes for more money, or will be viewed as doing so.

Sanctions sought against plaintiff in section 1983 case

The Roanoke paper reports here ("Judge considers sanctions, seeks information," 5/26/04) that the defendants in a section 1983 case brought by a citizen regarding what happened to her in the course of a traffic stop in Franklin County are seeking sanctions against her because they claim the suit was frivolous.

The article says:

"During a hearing in federal court Tuesday, U.S. District Judge Samuel Wilson said he found "a wide range of sanctionable conduct" in the legal action Abby Newman pursued against several Franklin County officials and two Virginia state troopers. But he stopped short of actually imposing sanctions, asking an attorney in the case to provide more information."

Since it is a section 1983 case, the defendants as the prevailing party could get attorneys' fees under 42 U.S.C. 1988(b), separate and apart from "sanctions."

Without betraying any secrets, I think every defendant in a civil case wants to seek sanctions against the plaintiff. An issue in this case, however, is the plaintiff's ability to pay.

Johnson City police officer sues Elizabethton police officer

The Johnson City paper (registration required) has this report ("Police officer sues over Elizabethton stop," 5/26/04), which begins as follows:

"A Johnson City police officer is suing an Elizabethton police officer after he was detained and left standing on the streets of Elizabethton in handcuffs for more than 15 minutes.
Michael Butler, an 18-year veteran of the Johnson City Police Department, and Jeffrey Grindstaff, of Carter County, filed the lawsuit in U.S. District Court in Greeneville last week. The lawsuit names Capt. Clyde Croy, a 26-year veteran of the Elizabethton Police Department, as the defendant.

Butler and Grindstaff are seeking $400,000 in damages."

How to make an electronic brief

From a real lawyer, Brian Peterson has this post on how to make an electronic brief.

Newport News man seeks post-conviction relief based on DNA

Via TalkLeft, the Daily Press has this story ("Inmate pins hopes on DNA tests," 5/26/04) about a convicted murderer seeking to have his conviction thrown out based on new DNA evidence.

Tuesday, May 25, 2004

En banc court reversed in private employer rebel flag case, finding no subject matter jurisdiction

In Dixon v. Coburg Dairy, Inc., the Fourth Circuit sitting en banc reversed the outcome in the district court and the outcome in the panel decision and directed the case be dismissed for lack of subject matter jurisdiction. Judge Williams wrote the opinion for the Court, joined by Chief Judge Wilkins and Judges Widener, Wilkinson, Niemeyer, Luttig, Traxler, Shedd, and Duncan. Judges Michael, King, and Gregory wrote separate opinions.

The panel was Judge Gregory plus Senior District Judge Michael of the W.D. Va., who agreed with Judge Gregory's opinion, and District Judge Goodwin of the S.D. W.Va., who dissented. I thought the panel decision was wrong when it was decided, as stated in this post, which says in part:

"Here, though, the claim is a creation of state law, and to say that the statute involves "a substantial question of federal law" is just not true, or if is true, the federal right applies only to state actors. In Kentucky, KRS 344.040 "mirrors Title VII of the Civil Rights Act of 1964" and therefore all the courts applying it, both state and federal, literally "use the federal standards for evaluating race discrimination claims." Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000). Judge Goodwin (being from West Virginia) cites a similar West Virginia law in his dissent. By Judge Gregory's logic, all those claims are removable, but they're not. It might be good for employers if they were. Moreover, if there is some state law construct that applies the Bill of Rights to persons other than state actors, that's not federal law, whatever it is.

The South Carolina cases cited by the court are not all they're cracked up to be - the plaintiffs lost in Culler v. Blue Ridge Electric Co-op and Williams v. Strickland for lack of proof, and so the courts in those cases never really unraveled the state vs. federal aspect of rights protected by the South Carolina statute.

Finally, application of the First Amendment to private employers is a bad idea. As the majority notes, private employers can't afford to allow employees "free speech" that amounts to unlawful racial (or sexual) harassment of co-workers. As the dissent notes in a footnote, application of the First Amendment to private employers is likely at least in some circumstances to violate the First Amendment rights of the employers, in a way that could be actionable in federal court, I suspect."

AG names new Solicitor General for Virginia

This press release announces the selection of the new Solicitor General, William E. Thro, formerly the Deputy Solicitor General.

On the Virginia budget surplus

The Washington Times has this editorial ("Fleecing taxpayers first," 5/24/04) that says the taxers had it wrong and the non-taxers had it right this year in Virginia.

On the Other Stanley and the Stanley Bluegrass Festival this weekend in Dickenson County

The Washington Post has this worthwhile article ("Carter Stanley: The Sibling That 'O Brother' Forgot," 5/24/04) on Ralph Stanley's brother who died in 1966 and the bluegrass festival that takes place in Dickenson County every Memorial Day weekend.

Judge Wilson rules again against arguments raised on behalf of Percy Walton

In Walton v. Johnson, Judge Wilson of the W.D. Va. denied the motion to alter his earlier judgment in the Percy Walton case, a Virginia inmate who sought federal court relief from his scheduled execution.

Last year, Judge Wilson rejected Walton's claim of mental retardation. In March of this year, Judge Wilson rejected Walton's claim that he was incompetent.

Why would anyone run for lieutenant governor

The Charlottesville paper has this column about why so many people are considering runs for lieutenant governor in 2005.

The answer is, they all want to be governor some day.

The column also estimates that the statewide races next year might add up to $72 million in "partisan economic development" for the Commonwealth.

Bristol - the far corner of the Richmond diocese

In this report ("Visiting 'from Bristol to Tidewater'," 5/25/04), the new bishop for the Richmond diocese vows to make it all the way to St. Anne's in Bristol by September of this year

Commission appointed by Va. legislature to study problems with e-voting

The Washington Post had this article ("E-Voting Woes Prompt Virginia Study," 5/24/04) on efforts by the Virginia General Assembly to unravel the problems of using electronic voting machines.

The article includes Professor Sabato's view, that "no one will find a completely satisfactory solution to the problems confronting electronic voting."

Southern Baptists support getting out of public schools

According to this report ("Proposal urges exodus from public schools," 5/25/04) in the Norfolk paper, Southern Baptists are being urged to pull their kids out of the public schools.

Roanoke man defends murder charges by saying the victim gave his friend a wedgie

According to this report ("'Wedgie' led to death near sports bar, lawyers say," 5/25/04) in the Roanoke paper, a murder defendant claims that his actions were in self-defense. The paper says:

"What started with a "wedgie" inside a Southwest Roanoke sports bar ended with a disembowelment and fatal neck wound in a dark field beyond.

Jonathan Freel, 35, among a group of men horsing around at the All Sports Cafe on Grandin Road, died in the early April 5, 2003, stabbing. Michael Keith Williams, offended when Freel wedgied a friend of his, was charged with murder."

Judge Stump and two others to preside over Gate City mayor's race recount

The Kingsport paper (registration required) has this update ("Judges to oversee Gate City recount," 5/25/04) on the progress of the recount proceedings over the mayor's race in Gate City.

Monday, May 24, 2004

On the denial of rehearing in the ministerial exemption from overtime case

Via this post from How Appeal, I see that in this order is recorded the Fourth Circuit's denial of rehearing in the case of Shaliehsabou v. Hebrew Home of Greater Washington - the nine being Chief Judge Wilkins, and Judges Widener, Wilkinson, Niemeyer, Williams, Traxler, Gregory, Shedd and Duncan, the four were Judges Luttig, Michael, Motz and King. Judge Luttig wrote a opinion dissenting from the denial of rehearing, and claiming that the recognition of this exception to the FLSA had never been recognized by any other federal court at any level.

Judgment affirmed in the Audubon Quartet case

In Wiencko v. Erhlich, the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Luttig, and Duncan affirmed the rulings of Judge Turk of the W.D. Va. in the case of one former member of Virginia Tech's Audubon string quarter, who got a judgment against the other three in Pennsylvania, and they then filed for bankruptcy in Virginia. The issue was whether an order in the Pennsylvania state court case violated the automatic stay in the bankruptcy cases; Judge Turk said the answer is no, and the Fourth Circuit agreed.

James Kilpatrick's take on RFRA case from W.D. Va., now being appealed to S.Ct.

In this column, columnist James Kilpatrick sides with Judge Turk and the Commonwealth and against the Fourth Circuit in commenting on the case of a Red Onion prisoner who claimed his religious beliefs were not accommodated in accordance with federal law.

Former Solicitor General Hurd joins Troutman Sanders

According to this press release from the law firm's website, former Virginia Solicitor General William Hurd has left the Attorney General's office and joined the Richmond office of Troutman Sanders (which used to be known a Mays Valentine).

Mr. Hurd is a good man, Virginia's loss is Troutman Sanders' gain.

Gun-rights dispute in Radford

The Roanoke paper reports here ("Group: Sign that bans guns is off mark," 5/23/04) on a dispute about whether it is legal to carry guns in a park in Radford.

Reckoning among Republicans on hold

The Norfolk paper has this article ("Struggle for party's identity on hold until after elections," 5/24/04) which suggests it will be a while before Virginia Republicans thrash out their differences over taxes.

On the Griffin case that reopened schools in Prince Edward County

The Richmond paper has this article ("Supreme Court's Griffin case came 10 years after Brown," 5/23/04) on the Supreme Court's 1964 decision in the Griffin case, that resulted in the reopening of the public schools in Prince Edward County.

Why would Southwest Virginia vote for Kevin Triplett

On Sunday, the Roanoke paper has this article ("Triplett vows to bring more energy to economic efforts if he wins election," 5/23/04) on Kevin Triplett's acceptance of the nomination to run against Congressman Rick Boucher.

Some place else I read this morning that Democrats are hoping, optimistically, that President Bush will be so unpopular in November that the Democrats will retake the majority in the House of Representatives.

As I've written here before, when I was in college, I wrote a paper on the Boucher campaign of 1984, when he was re-elected the first time, with popular Republicans Ronald Reagan and John Warner on the same ballot. Congressman Boucher was more vulnerable then than now, accommodated his opponent in many ways that he will not do now (in terms of the number of debates and joint appearances), and still won handily.

More on court-appointed counsel in Virginia

The AP has this report on the new Virginia Indigent Defense Commission, which will oversee training and certification of counsel representing indigent criminal defendants.

The article says, among other things:

Court-appointed lawyers will be required to attend six hours of "continuing legal education" classes developed by the commission every two years. Attorneys who want to represent juveniles must complete an additional four hours of specialized training.

The AP also has this article which say that court-appointed lawyers in Virginia are about the lowest-paid anywhere, and their fees have remained essentially the same since 1971.

Another article with gloomy outlook on the Haynes nomination

Via How Appealing, this article ("Judicial nomination in doubt amid abuse scandal," 5/23/04) from the Chicago Tribune (registration required) is another suggesting that Fourth Circuit nominee William J. Haynes might not get through the Senate because of questions about his role in controversial legal issues involving the Defense Department.

Haynes was nominated by President Bush to succeed Judge H.E. Widener, Jr., from Southwest Virginia.