Friday, July 02, 2004

Judge Markow talked into 90-day injunction against change in blue laws

The Washington Post reports here ("Judge Approves Injunction of Va. Blue Law," 7/2/04) that Judge Markow of the Circuit Court in Richmond was convinced to enter a 90-day injunction that purports to suspend the operative date of the messed-up blue laws.

I wonder whether anyone has standing to appeal, or whether that injunction could be collaterally attacked if someone makes a claim later for their triple time.

Virginia's Judicial System webpage gets new look

The Virginia's Judicial System website has a new look.

Adding little decorative pictures to a judicial website is silly, wasteful, and probably makes the site marginally less accessible to people who use dial-up connections. The old look was delightfully utilitarian in its homeliness.

Convicted former city council-woman wants a bigger room for the crowd at her sentencing

The RIchmond paper reports here ("Hedgepeth asks court for more seating," 7/2/04) that a former member of the Richmond City council requested from the federal court a bigger courtroom for her sentencing so that all of her supports could find a seat.

More on coaches and the FLSA

The Roanoke Times has this article ("Coaches losing jobs to fair-labor law," 7/2/04) on the problem of having to pay overtime to coaches (who aren't teachers) for public school sports.

Delegate Marshall on H.B. 751

In this piece from the Daily Press, Delegate Robert Marshall responds to criticism of his Marriage Affirmation Act, H.B. 751.

He notes in part that the new law "is not to prohibit business partnership agreements, medical directives, joint bank accounts, or any other rights or privileges not exclusive to the institution of marriage," quoting the Attorney General.

E-mail server owners along the way can read e-mail?

The Washington Post has this article ("Court Limits Privacy Of E-Mail Messages," 7/1/04) about the First Circuit ruling on that companies providing e-mail service can read their customers' e-mail.

I'll have to read the opinion, U.S. v. Councilman.

Countdown to ACC football championship game

This article ("7 cities compete to host ACC football title game," 7/2/04) says that the bidders include Charlotte; Baltimore; Jacksonville, Fla.; Miami; Orlando, Fla.; Tampa, Fla.; and Washington for the Atlantic Coast Conference football championship game in December.

From those, I'd say the answer is obviously Charlotte, but what do I know.

Unrelated to this, I have been studying on attending the Temple-Virginia game at Lincoln Financial Field (home of the Eagles) in Philadelphia on September 4. I drove by there in February en route to the deposition in New Jersey, and also my brother-in-law (who has a MBA from Temple, I think) and his gang went up there to a baseball game this summer and were studying the football stadium, so maybe we'll pool our interest and make it a road trip.

Immediate appeal allowed from ancillary protective order entered at request of non-party

In Nicholas v. Wyndham International, Inc., the most interesting issue was appellate jurisdiction. The Fourth Circuit, in an opinion by Judge Shedd, concluded that it had jurisdiction for an appeal of a protective order granted in connection with non-party discover sought in Virginia in connection with a federal case pending in the Virgin Islands. The loser on the protective order was the defendant in the Virgin Islands case, and was seeking discovery from a non-party company in Virginia that was owned by two of the plaintiffs.

What's bad is the opinion makes it appear that the discovery they were lawing over is really lame, and part of a long series of discovery excess in connection with the case.

No arbitration required under UMWA pact for discrimination claims

In Eastern Associated Coal Assoc. v. Massey, the case involved a coal miner in West Virginia who sued his employer, claiming that he was illegally discharged him because of his workers' compensation claim and his disabilities. On appeal, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judges Shedd and Luttig concluded that neither of these claims was made subject to arbitration under the terms of the employer's collective bargaining agreement with the UMWA.

Clever FOIA response

One thing we always do when we get in an employment discrimination case that involved a filing with the EEOC is to submit a FOIA request to the EEOC for as much of their file as they will give us.

Today, we received a response to the latest request, and the response was this:

"You request access to the Commission's investigative file titled . . . , Charge No. . . . . The request is neither granted nor denied. A thorough search has been conducted the above referenced file. The file cannot be located." (Emphasis added).

The letter also informs us of our right to appeal.

Whenever I think of the records of the federal government, I picture the scene of the warehouse at the end of the movie "Raiders of the Lost Ark."

Thursday, July 01, 2004

One judge from S.D. W.Va. dealing with Blakely

CrimLaw has posted this excerpt from a court transcript with the ruling of one of the federal judges in West Virginia on the constitutional limits of federal sentencing, post-Blakely.

Split panel reverses suppression order

I'm not sure what to make of the Fourth Amendment cases coming out of the Fourth Circuit these days except that there are many of them. In U.S. v. DeQuasie, the Fourth Circuit in an opinion by Judge Shedd, joined by Judge Williams with Judge Motz dissenting, overruled the trial court's order suppressing evidence as inadmissible.

Not a whole lot of process is due on inmate grievances

In Brown v. Braxton, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges King and Gregory, held that an inmate's claim that his inability to get witnesses to appear on his behalf at an inmate grievance hearing at the Red Onion prison did not violate his due process rights.

Special session contemplated to fix blue law snafu

The AP is reporting here that legislators are talking about a special session of the General Assembly to fix their having inadvertently tossed out exemptions to the day of rest statutes in their attempt to modernize the Virginia blue laws.

The new Virgnia Indigent Defense Commission

The Washington Post has this article ("Va. Panel to Oversee Legal Defense for Poorm" 7/1/04) on the new Commission responsible for overseeing the legal defense of the poor in Virginia.

How the politicians got Tech in the ACC

The Richmond paper has this recap of the efforts of Governor Warner and AG Kilgore to get Virginia Tech in the ACC, notwithstanding the views of the University of Virginia fans around them.

More on Gate City election case

The Scott County paper has this statement from the lawyer for the two plaintiffs.

Wednesday, June 30, 2004

No diversity of citizenship where defendant partnership included Virginia partner

In Roche v. Lincoln Property Co., the Fourth Circuit in an opinion by Judge Gregory, joined by Judge Widener and Senior Judge Beam (sitting by designation), held that the district court lacked subject matter jurisdiction because one of the defendants was a partnership with a Virginia partner.

So, the summary judgment entered on the merits for the defendants was vacated, and the district court's ruling on the jurisdiction issue were reversed.

Split panel reversed denial of preliminary injunction in public forum case brought by religious group

In the case of Child Evangelism Fellowship of Maryland, Inc. v. Montgomery County Public Schools, the Fourth Circuit in an opinion by Judge Motz, joined by Judge Shedd with Judge Michael dissenting, held that the district court erred in denying a preliminary injunction against a local school system where the plaintiffs sought access to the school's "take-home flyer forum." The majority thought that even though the plaintiffs were some sort of religious outfit, their use of the public forum would not violate the Establishment Clause. In dissent, Judge Michael disagreed on the Establishment Clause issue.

This is a very complicated question, and it would not surprise if the case was reheard en banc.

Southwest Virginia bikers' diary

Here is the the part of diary of some Baylor University students biking across America, for the week (June 24-29) they traveled through Southwest and Central Virginia - including Meadowview, Damascus, Sugar Grove, Cedar Springs, Rural Retreat, Wytheville, Radford, Christiansburg, Troutville, Lexington, Vesuvius, Afton, Charlottesville, Monticello, Tabscott, Mineral, Ashland.

Schools ponder what to do about coaches and overtime

The Norfolk paper has this article ("School officials to assess labor laws affecting coaches," 6/30/04) on how schools are trying to figure what to do about school employees who also work as coaches, with the result that they work more than 40 hours per week.

Exemptions from day of rest law wiped out by mistake

The Roanoke paper reports here ("Day-of-rest law may give some workers triple pay," 6/30/04) that a new law intended to eliminate the outdated and unconstitutional aspects of Virginia's blue laws also inadvertently wiped out provisions exempting most businesses from the statutory day of rest requirement, with as-yet unknown consequences.

The Act of Assembly is here. It says simply that sections 40.1-28.5 and 18.2-341 of the Virginia Code among others is repealed. These sections exempted many businesses from the day of rest requirements contained 40.1-28.1, 40.1-28.2, and 40.1-28.3.

Chief Judge Jones on the new sentencing confusion

Today's Roanoke paper has this article ("Court sentencings on hold while ruling is deciphered," 6/30/04) with comments from Chief Judge Jones over the confusion about whether the federal sentencing procedural is constitutional in the wake of the Supreme Court's ruling in Blakely v. Washington, which extends the rule of Apprendi to apparently prohibit any fact-finding by the judge and not the jury in support of sentencing.

Tuesday, June 29, 2004

No worker's comp for injuries caused by lightning strike

In VEC v. Hale, the Virginia Court of Appeals in an opinion by Judge Frank, joined by Judge Humphreys, with Judge Elder dissenting, concluded a woman injured when lightning struck the telephone system she operated was not entitled to workers' compensation for her injuries.

In dissent, Judge Elder declared, among other things, that judicial notice can be taken of certain facts about lightning.

Judge Moon's opinions in the Earl Washington case

Now available here and here on the W.D. Va. website are Judge Moon's opinions from the Earl Washington civil case.

Pagan who stabbed another inmate 68 times to be executed on Thursday

The AP reports here on a Virginia inmate scheduled to be executed on Thursday for murdering another inmate four years ago.

Tech players might get to play while waiting for appeals in circuit court

The Roanoke paper reports here ("Vick might start season on the field," 6/29/04) that the Virginia Tech athletic department might not be able to suspend Marcus Vick and the others until after their appeals are resolved in circuit court, which may not happen until after the football season begins.

FEMA contract worker from Wise County one of Operation Big Coon Dog defendants

The Coalfield Progress explains here that one of the defendants in the Operation Big Coon Dog case was a fellow who was from Wise County and who had contracted to do work for the Federal Emergency Management Agency.

Monday, June 28, 2004

Rehearing en banc denied by Fourth Circuit in S.C. license plate case

In Planned Parenthood of South Carolina, Inc. v. Rose, the Fourth Circuit declined to rehear en banc the case in which the panel of the Court struck down a South Carolina law allowing state license plates to bear the phrase, "Choose Life."

The vote in the case was this: "On the poll requested by a member of the court on the petition for
rehearing en banc, Judge Widener, Judge Niemeyer, Judge Williams, Judge Traxler, and Judge Shedd voted to grant rehearing en banc. Chief Judge Wilkins, Judge Wilkinson, Judge Luttig, Judge Michael, Judge Motz, Judge King, Judge Gregory, and Judge Duncan voted to deny rehearing en banc." Judge Wilkinson wrote an opinion concurring in the denial of rehearing, emphasizing that this is a First Amendment case, not an abortion case. Judge Shedd wrote an opinion that said how odd that South Carolina could make Choose Life its state slogan (according to the majority) but could not take the lesser step of allowing the Choose Life license plate.

I'm not sure that I can recall a case where on any issue where Chief Judge Wilkins, Judge Wilkinson, Judge Widener, and Judge Williams, and 2 Ws went one way, and 2 Ws went the other - but I'm not keeping score.

Judge Wilson's ruling in student loan case affirmed by Fourth Circuit

In Educational Credit Management Corp. v. Doane, then Chief Judge Wilson reversed the bankruptcy court and held that the appellant's claim for repayment of the debtor's student loan survived the discharge mistakenly entered by the bankruptcy court using an outdated discharge form.

Today, in this opinion, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Williams, and Senior Judge Beezer from the Ninth Circuit, affirmed the ruling by Judge Wilson.

Logging opponent denies being a terrorist

In this column, an opponent of logging in the Jefferson National Forest explains why he is not a terrorist.

High schools with tobacco quotas

This article ("Growing Tobacco, and Controversy," 6/25/04) from the Washington Post includes the following:

"The kids in Damascus, a small town deep in Southwest Virginia, a few miles from the Tennessee border, have been growing tobacco since at least the 1960s, when the Washington County School District bought land for Holston High School. Holston and another Washington County school, Abingdon High, are the only high schools in Virginia that grow tobacco, the USDA said. They produced more than 4,900 pounds last year. But recently county and school administrators have started considering alternative crops because of a decline in the region's tobacco industry and because of concerns about the propriety of school tobacco farms. "

Update on Liberty law school

This article ("Liberty adds 2 majors, 6/28/04) has an update on the upcoming start of the law school at Liberty University in Lynchburg. It says so far they have 40 acceptances for the incoming class, and expect to get more.

Sunday, June 27, 2004

Database with names and dollars for proposed tobacco buyout

An group called Environmental Working Group has posted this database on which you can look up all the tobacco growers you know in Southwest Virginia and see how much they would get.

There are 44 Minors on the list, 9 Miners, and 1,602 names (some corporate) from right here in Abingdon, 378 from Rose Hill where my sister lives, 19 from Norton, and so on.

You can just about see a tobacco patch out the window from this room here at the house, but the landowner over there is not on the list.

The Danville paper has this article profiling some of the would-be participants from that area, who explained how the money would not be much of a windfall.

More Coon Dog tales

The Bristol paper had this report ("'Coon Dog' furor continues," 6/37/04) this morning with more information on Operation Big Coon Dog, the federal bribery case out of Buchanan County.

Also, this from the Hotmail account, this interesting note:

"Thanks for your efforts in posting articles and opinions re: Operation Big Coon Dog. This is a service to many in the county since local papers are printed once a week and regional papers such as Bristol Herald Courier are hard to find as this scandal was revealed. There was much talk and gossip regarding these alleged crimes. Many of these stories may surface as truth (or not). Thanks for your efforts."

More on the coming protests to protect the Jefferson National Forest

The AP has this story on protesters against logging in the Jefferson National Forest.The article says that "after losing a federal court fight against a plan to trim 618 acres in Jefferson National Forest, Southern environmentalists say it may be time to get more aggressive."

More on the anti-same-sex partnership law

The Roanoke paper has this story ("Gays fear new state law banning civil unions could go much further," 6/27/04) which attempts to provide real-world examples of what the opponents of Virginia's new law say are its potential bad consequences.

The Washington Times reports here ("Gay-rights advocates march on delegate's home," 6/27/04)that protesters have marched on the home in Fairfax County of the sponsor of the new law.

Prohibition in Staunton

The Staunton paper has this interesting article on the history of crime in Staunton related to Prohibition.

Virginia ahead of the curve on DUI laws

The AP has this story describing how, with the 2004 amendments, Virginia's DUI laws are among the toughest in the U.S.

The article does not mention how Virginia's laws compare with the DUI laws of Europe, but then again, I've said here I'm opposed to the citation to authorities from the Continent.

Written materials from May 2004 Virginia judicial conference

Here are written presentations from the May 2004 judicial conference, including:

Review of Virginia Appellate Civil Cases
(The Hon. Jane Marum Roush, Judge, Fairfax Circuit Court)

Servicemembers Civil Relief Act of 2003
(Steven L. Dalle Mura, Director of Legal Research, Supreme Court of Virginia)

2004 Legislation Affecting Circuit Courts
(Steven L. Dalle Mura, Director of Legal Research, Supreme Court of Virginia)

Civil Commitment of Sexually Violent Predators
(Steven L. Dalle Mura, Director of Legal Research, Supreme Court of Virginia)

Character Evidence
(Kent Sinclair, School of Law, University of Virginia)

Covenants Not To Compete and The Duty of Loyalty
(Harris D. Butler, II, Butler, Williams & Skilling, P.C.; Edward Lee Isler, Ray & Isler, P.C.)

Review of Virginia Appellate Criminal Cases
(Ronald J. Bacigal, T.C. Williams School of Law, University of Richmond)

Judicial Opinion Writing
(The Hon. Clifford R. Weckstein, Roanoke City Circuit Court)