Friday, July 16, 2004

The HooK takes on what's new in Virginia law - marriage, sodomy, no nude teen camps, and the budget

From an edition of The HooK focusing on Virginia law:

Comin' at ya: The new laws and U

Not gay: Marriage affirmation sparks protests

Nude teen camp: Not on Virginia's watch

State of sodomy

Survivors 2004: Legislators tell all

Coarse debate: 'Defense' of marriage wrecks contracts

View of the Commonwealth from Venezuela

From Venezuela, this commentary on Virginia includes these remarks:

"Virginia, second only to Texas in the frequency of executions and in the virulence of its anti-social attacks on the poor is ruled by one of the most conservative state governments in our country. These penny-ante politicians loudly, at every opportunity trumpet their Christian and family values, winning thereby the allegiance of those willing to be guided by faith rather than reason. But every so often they let their greed, their real loyalty -- to money and business, to Mammon, not to God -- shine forth in all its glory. And show us their deep and irremediable stupidity in the process. . . .

Working to bar the possibility of marriage between gay or lesbian persons, the brilliant lawmakers of Virginia have passed special legislation forbidding this sort of civil or religious union. The only problem is that their new law may make ALL forms of contract between persons of the same sex illegal in this state. Be warned: If you propose to come to the USA to do business, you may have to make contracts only with a person of the opposite sex!"

More on Blakely and the Fourth Circuit

Via this post from How Appeal, the Charleston Post and Courier has this article ("Sentencing guidelines decision affects several S.C. cases," 7/16/04), which says, among other things:

"A U.S. Supreme Court decision last month has raised questions because it indirectly suggests that federal sentencing guidelines deny defendants their rights to a jury trial.

Meanwhile, while an appellate court in Richmond, Va., considers next month how courts in the South should apply sentencing rules, a federal judge in Charleston has delayed sentencing hearings in two criminal cases. . . .

U.S. District Judge David Norton in Charleston postponed two cases until the U.S. 4th Circuit Court of Appeals in Richmond makes a decision in a Charlotte case involving a man sentenced to 155 years in prison for smuggling cigarettes. Attorneys for Mohamad Hammoud Contar contend that a federal judge imposed an excessive sentence."

Interesting commercial case from the Fourth Circuit

In Andrews v. Primus Telecommunications Group, Inc., the Fourth Circuit in a per curiam decision for the panel of Judges Niemeyer, Shedd, and Duncan, affirmed summary judgment for one of the defendants in a case applying Virginia law on issues of vicarious liability, that the defendant Primus was had no respondeat superior liability for the acts of other defendants and that there was no joint venture between and among the various defendants.

Judge R. Williams denies preliminary injunction sought against teen nudist camp law

The Richmond paper reports here ("Judge refuses to block law on nudist camp," 7/16/04) and the AP reports here on the denial by Judge Williams in Richmond of the ACLU's request for injunctive relief against the new law limiting teen nudist camps in Virginia.

SW Virginia law blog makes

Yesterday's somewhat ambiguous reference to the new Hugh Hewitt book got noticed here on

I guess what made the title of the book catch my attention was not the partisan aspect, but we have that election case going on down in Scott County, where the outcome was decided by two votes.

Thursday, July 15, 2004

Jeff Julian

From the Golf Channel, some time ago, I learned the story of Jeff Julian, who died today from ALS. Some stories about him can be found here on the Clemson website, here in Rich Lerner's column on the Golf Channel's website, and here on

He was a brave man with a lot of friends.

Open carry is the law in Virginia

Reading this article ("Guns Worn In Open Legal, But Alarm Va.," 7/15/04) about people carrying their guns around in Virginia for some reason made me think of the deposition I attended not too long ago, where the witness proudly took out his gun permit and showed it to the lawyer who was asking the questions.

"Why are you showing me this?" asked the lawyer.

"Because it shows I'm not a felon," said the witness.

"Do you carry a gun?" asked the lawyer.

"All the time," said the witness.

"Do you have it in here with you now?" said the lawyer.

"No, but it's close by," said the witness.

Staunton paper says rewrite Virginia's sodomy law

The Staunton paper has this editorial calling for the revision of Virginia'a sodomy law in the wake of Lawrence v. Texas.

A liberal's view of Bush's judicial nominees

This editorial restates the liberal word on Haynes, Pickering, Pryor, Owen, etc.

About Haynes, it says:

" Pentagon General Counsel William Haynes II is a career military lawyer with almost no courtroom experience that would qualify him for a lifetime seat on the Fourth Circuit Court of Appeals. Yet after Haynes supervised the preparation of a report advising that the President's Commander-in-Chief authority would trump the prohibition against torture, Bush nominated him for a coveted spot on the Fourth Circuit.

This "federal appeals court in Richmond, Va., is emerging as a cutting-edge testing ground for conservative legal theories that only a few years ago seemed radical and almost unthinkable to liberal legal analysts," Warren Richey wrote in the Christian Science Monitor two years ago. "Today, many of them are the law of the land. Instead of being overturned, these legal theories – involving limits to federal power and defendants' rights – are being embraced and upheld by a slim majority of conservative justices on the US Supreme Court," according to Richey. It's no surprise that John Ashcroft decided to file the cases against John Walker Lindh and Zacarias Moussaoui in the Virginia district court. Ashcroft knew he would get more favorable appellate treatment from the Fourth Circuit, widely heralded as the most conservative circuit in the country.

The revelations of Haynes' apologies for torture may not sit well when U.S. Senators, who must give their advice and consent to Bush's nominees, consider Haynes' nomination. Pictures and accounts of torture at Abu Ghraib prison, Guantánamo Bay and Afghanistan may have poisoned the well for William Haynes."

2003 statistics for the Virginia Supreme Court

According to this report, in 2,233 petitions for appeal were filed with the Virginia Supreme Court in 2003, and 208 were granted.

$65,000 in attorney fees awarded to ex-husband in connection with custody litigation not dischargeable

In Rutledge v. Rutledge, the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Traxler, and Shedd affirmed a ruling by Judge Morgan of the E.D. Va. that attorneys' fees awarded by a Virginia state court to an ex-husband against the ex-wife in the amount of $65,000 were not dischargeable in bankruptcy.

En Banc Fourth Circuit to take on Blakely

Via CrimLaw, the Blakely Blog has this post, which says "the en banc 4th Circuit will soon hear Blakely arguments in US v. Mohamad Y. Hammoud, 03-4253. Argument is set for Monday, Aug. 2nd."

The book on close elections

SoCal blog has this post with a link to If It's Not Close, They Can't Cheat: Crushing the Democrats in Every Election and Why Your Life Depends on It.

Oddly enough, I've seen the first part of the title online a few times, but didn't know until now which if any party in particular was the target of the book, which is a sad commentary. Particularly since 2000, there's always somebody saying the other guy cheated.

More on Melungeons

The Coalfield Progress has this report on the latest book exploring the connection between the Melungeons of Appalachia and the people of Turkey. The book is called From Anatolia to Appalachia: A Turkish-American Dialogue.

No punishment for juror who slept

The AP reports here that the Stafford County Circuit Court will not punish a juror whose snoozing during the prosecution's case led to a mistrial.

Virginians know money makes a difference in quality of representation

The Richmond paper published these survey results ("Survey finds indigent defense support," 7/14/04) that show, among other things, that 82 percent said the amount of money spent for legal defense makes a "great deal" or "some" difference in the quality of representation.

Gentlemen, start your marriages

The Kingsport paper has this article ("Brides, grooms lining up to say 'I do' at Bristol Motor Speedway," 7/15/04) on weddings at Bristol Motor Speedway on the occasion of the night race, coming up soon in August.

Blakely in the E.D. Va. (and elsewhere)

The Norfolk paper has this description ("Supreme Court decision shakes up sentencing process on local scene," 7/14/04) of the scurrying about that is going on in criminal cases in the E.D. Va., following the Supreme Court's Blakely decision, which is resulting in some new decision from somewhere almost every day regarding the constitutionality of the federal Sentencing Guidelines.

I don't read all that's out there about Blakely, but I expect to eventually run across an article explaining Blakely as the point where the federal judiciary snapped back against mandatory sentencing. The language of the Sixth Amendment has not changed since the passage of the Sentence Reform Act, but attitudes toward mandatory sentencing have gotten worse.

Wednesday, July 14, 2004

A good laugh

Words can't describe this, which has nothing whatsoever to do with Southwest Virginia and not much to do with the law, but came to my attention via this post from L,L,L, which describes laughing out loud.

Unlike the fellow at L,L,L, everyone heard me laughing like a lunatic earlier this week when I was speaking with a lawyer named Welsh who said she told people she was related to Coach George Welsh until people started answering back that they could see the family resemblance.

Fourth Circuit reversed summary judgment on hostile racial environment claims

In White v. BFI Waste Services, LLC, the Fourth Circuit in a decision by Judge Luttig, joined by Judge King and Judge Beezer sitting by designation, affirmed in part and reversed in part the summary judgments entered by the district court on the plaintiffs' race discrimination and hostile environment claims brought under Title VII and section 1981.

In particular, the Court held that the trial court erred in its decision regarding the timeliness of the hostile environment claim, and its decision about whether the acts shown by the plaintiffs' evidence were bad enough to make out an actionable hostile environment claim.

Fourth go-round on qualified immunity ends in favor of deputy in shooting case

In Martin v. Bushong, the Fourth Circuit in a per curiam decision for the panel of Chief Judge Wilkins, Judge Motz, and Judge Beam sitting by designation, held that a deputy sheriff was entitled to qualified immunity in a section 1983 case related to a fatal shooting. The case had been argued twice in the District Court on motions for summary judgment and this was the second appeal to the Fourth Circuit on qualified immunity, all before trial on the merits.

Illegal alien suit against Virginia schools dismissed for lack of standing

The AP reports here that Judge Ellis of the E.D. Va. has dismissed for lack of standing the lawsuit filed against Virginia's public colleges and universities challenging denial of admissions to illegal immigrants.

Why not work on weekends

Brian Peterson has this post with a link to this article about a WV lawyer who was stuck in an elevator for 18 hours on a recent Sunday.

Something similar happened, I'm told, to Judge Flannagan, during his days as a practicing lawyer, a few feet from where I am sitting, when this space was occupied by the offices of Woodward Miles and Flannagan, and the judge was locked in what was then the foyer and could not get out to the street or back into the offices.

New faculty at the Appalachian School of Law

The Appalachian School of Law has the press release regarding new faculty members coming to teach at the school in Grundy.

The Blue Law special session

The Washington Post has this report ("Lawmakers Put to Rest Blue Law," 7/14/04), the Roanoke paper has this report ("General Assembly puts in single day of work to fix 'day of rest' gaffe," 7/14/04), the Richmond paper has this report ("Now, the assembly can take a rest," 7/14/04), and the Norfolk paper has this report ("Assembly fixes flub that gave day of rest," 7/14/04), on the mini-session of the General Assembly to fix the Sunday-off law.

Tuesday, July 13, 2004

Pickering et al. say USSG pass muster under Blakely

In U.S. v. Piniero, a panel of the Fifth Circuit including Judge Charles Pickering from Mississippi upheld a constitutional challenge to the federal sentencing guidelines based on Blakely.

Mysteriously, in U.S. v. Penaranda, the Second Circuit "certified the question" to the U.S. Supreme Court, which sounds like a good idea but who knew (not Volokh and not Instapundit, nor Stuart Buck) it could be done.

Monday, July 12, 2004

W&L Law School's Legal Clinic wins an appeal before the 4th Circuit

The law school at W&L has this press release about the successful representation by a third-year student of an appellee in a black lung case before the U.S. Court of Appeals for the Fourth Circuit.

Some years ago, on a day when I was before the Fourth Circuit, Judge Murnaghan chaired the panel, and a student from U.Va. or Georgetown argued a case, and before argument began, the judge held forth at some length on how great the program was, and its sponsor, and its law school. Then, after that tremendous greeting, in the argument, Judge Murnaghan was all over the guy, so I guess he got the full experience.

Chief Judge Jones gives death row litigant 60 days to file

In Lenz v. True, Chief Judge Jones fixed a 60-day deadline in which a Virginia death row inmate, whose execution was stayed by the W.D. Va., can file his federal habeas corpus petition.

More on legal challenges to Virginia's sodomy law

The AP has this report on constitutional challenges to Virginia's sodomy law, based on the Supreme Court's decision in Lawrence v. Texas. None of the cases, apparently, involve private acts, as in Lawrence, which was based in part on the Fourth Amendment.

In this week's VLW - article on law blogs

In the second section of this week's Virginia Lawyers Weekly is an article by Jeff Brown of Wright Robinson et al. on weblogs, which says among other things that "Steven Minor's SW Virginia law blog . . . is the leading attorney blog in Virginia, with its regular case law updates and quality links."

If it says so in Lawyers Weekly, it must be so.

Profile of a female lawyer in a rural Virginia county

The Winchester paper has this memorial for a lawyer and judge who died last week, and was the first woman lawyer and first woman judge in Clarke County.

Is the University as bad as the rest?

This column from the Norfolk paper about college athlete scandals says, among other things, that "While touting itself as an academic village of rare repute, Mr. Jefferson’s University is willing to bring in football players ill-equipped to attend the average commuter college."

Who's to blame for the infamous blue-law bill

In this editorial ("You Vet!," 7/12/04), the Richmond paper blames everybody for the infamous blue-law bill, including:

"A State Senator, who is a lawyer, proposed the bill, which was drafted by the General Assembly's division of legislative services. The appropriate committees studied the bill and sent it to the floor. The ladies and gentlemen of the oldest and most distinguished legislative body in the New World overewhelingly endorsed the measure. The bill sailed through the House with scant recorded opposition. No one in the Senate voted nay.

An Attorney General's office that misses few opportunities to score clever partisan points missed the bill's fatal flaws. Gubernatorial advisers - including Cabinet officials and aides who have won awards for their professionalism - recommended that His Nibs sign the legislation. A chief executive applauded by the corporate community for applying business-like discipline to government confidently provided his John Hancock."

In this column ("Day-of-rest fracas is a tempest in a teapot," 7/11/04) from the Virginian-Pilot, the head of the Division of Legislative Services says he is responsible.

Virginian-Pilot jumps on bandwagon for more money for lawyers for the poor

In this editorial ("Discount justice is inadequate justice," 7/12/04), the Norfolk paper joins the Washington Post in calling for more money for the lawyers who represent indigent criminal defendants in Virginia, so that the quality of representation will be improved.

Sunday, July 11, 2004

Edwards went to Clemson, NC State, and UNC

It says here that Vice-Presidential Candidate John Edwards tried to walk on to the football team at Clemson (as a 156-pound defensive back), before transferring to N.C. State, then going to the University of North Carolina for law school.

Geez, I've rooted against all three of those schools every chance I got, at least since David Thompson turned pro.

McSweeney - exaggerated fears about civil union law prompted by activist agenda

In this column, former Republican Chairman Patrick McSweeney dismisses criticism of the new anti-same-sex partnership law in Virginia.

The perfect storm

The Daily Press has this article ("Day of rest bill slipped through," 7/11/04) and the AP has this article on how the Sunday-work bill slipped through the cracks.

On the merits of Drug Court

This column from the Daily Press describes the merits of the Drug Court program in Newport News.

New Virginia law causes Hispanics to be suspicious of police

The Washington Post reports here ("Law Raises Immigrants' Suspicions," 7/11/04) that the authority conferred on local law enforcement under a new Virginia law to detain illegal immigrants has made more difficulty the relations between Hispanic immigrants and police.

Employee not bound to arbitration policy announced by company e-mail he didn't read

In Campbell v. General Dynamics Government Systems Corp., the U.S. District Court for the District of Massachusetts held that the employee plaintiff was not bound to arbitrate his employment discrimination claims where his only notice of the company's dispute resolution procedure was by way of an e-mail he claimed to have never read.

The impact of Senators Thurmond and Helms on the Fourth Circuit

The Richmond paper has this very interesting article measuring the effects of the efforts of Senators Strom Thurmond of South Carolina and Jesse Helms of North Carolina on the makeup and ideology of the U.S. Court of Appeals for the Fourth Circuit.

The article notes that when President Reagan took office in 1981, six of the Fourth Circuit judges were Democratic appointees, while four were Republican appointees. None but Judge Widener are still on the Court. Senators Thurmond and Helms both had some control over who joined the Court in the 1980s and 1990s.

The article describes the connections between Thurmond and the current judges oon the Court from South Carolina, including Chief Judge Wilkins and Judges Traxler, Williams, Shedd, and Senior Judge Hamilton. It also describes the current confirmation difficulties of nominees Judge Boyle, Claude Allen, and William Haynes.

Gate City mayor and town council seek summary judgment in election case

The Kingsport paper reports here ("Gate City Town Council asks court to nullify May 4 election," 7/11/04) that the Mayor and Town Council for Gate City have filed a motion for summary judgment in the election contest case, "asking the court to rule that the election is invalid, declare the mayoral election void, and order the resulting vacancy to be filled by special appointment under provisions of the Code of Virginia." The plaintiff's lawyer, in opposition, wants the Court to declare his client the outright winner, instead of allowing for a special appointment.