Saturday, October 16, 2004

Ah, another punctuation obsession

Call the serial comma, the Harvard comma, or the Oxford comma, I use it with every series (like the one I just wrote) and I am pleased that both Professor Bainbridge and David Giacalone are of like minds.

E-mail of the day

Today I got a message directing to me a page called Media from the Yes Bush Can, which calls on "conservative bloggers" to prove that various documents are fake. How bizarre.

Gore and Dole to debate at Regent

A reader reminds me that Al Gore and Bob Dole will debate about this this year's election at Regent in Virginia Beach on October 22, as shown in this notice.

On tobacco money

In this article from the Danville paper, a Virginia legislature declares that the U.S. has a moral obligation to make sure the states get their tobacco money, and also that "the government is riding a wave of public opinion to milk an industry at the foundation of American history."

FOIA suit over meeting with architect to discuss litigation

The Culpepper paper reports here: "Last week the Board of Supervisors held a closed session, stating the agenda was privileged because it 'could lead to probable litigation.' They didn't know how right they were."

The probable litigation exception to the open meeting requirement has given me pause to ponder at different times over the years, where the government lawyer concludes that the government has a claim and wants to talk to the board about whether it should be brought. In my view, that's probable litigation, even if the board decides not to file the suit but to do something else, like negotiate some more.

W.D. Va. jury says no on death penalty

As the Charlottesville paper reports here, "A federal jury decided Wednesday that Shawn A. Breeden and Michael A. Carpenter should not be put to death for a drug-related ambush killing but should instead spend the rest of their lives behind bars."

Hit of the day

Somebody came to this site today from the computers of the American Center for Law & Justice. I don't know whether they were in favor or opposed, but they didn't stay long.

Nader's Virginia coordinator is accused of election fraud

The AP reports here and the Norfolk paper reports here ("Nader's chief in Virginia is indicted on election fraud," 10/16/04) that the Virginia state coordinator for the Nader campaign has been indicted for 10 counts of election fraud in connection with petitions to get Nader on the ballot in Virginia. The indictments were issued by a special grand jury in Virginia Beach.

E.D. Va. rules that school discriminated illegally against bricks with crosses

The AP reports here that Judge Cacheris of the E.D. Va. has ruled against Loudoun County schools in a suit over whether the school system unlawfully "discriminated against some families by removing bricks engraved with crosses from a walkway in front of Potomac Falls High School." The bricks were sold as part of a fundraising project for the school's parent group.

Friday, October 15, 2004

E-mail just by thinking?

Via this post from Kuro5hin is this article about a paralyzed man who had a computer chip planted in his brain so he is able to send e-mail using his thoughts.

More common is the problem of people who don't use their brains when sending e-mail.

Taxes on home sales

The Norfolk paper reports here ("Higher home-sales tax pads state coffers by $16 million," 10/15/04) on the proceeds of the increased tax on home sales.

More on the WV chicken dinner shooting

The case of the dispute between a father and son from Mercer County over how to cook chicken that ended with a shooting is now headed to the grand jury, according to this report in the Bluefield paper.

Thursday, October 14, 2004

Google Desktop Search

Here is the page where you can get Google Desktop Search, which ought to be worth checking out. I've been playing with Copernic Desktop Search, which works powerfully but seems to be such a memory/bandwidth hog I can't run it all the time.

Two ways to tell you are not in Europe

If you look are driving down the road and, looking out the window, you see either Carhenge or the Cadillac Ranch, then you must be in Nebraska or Texas.

My mom and dad came back from their summer vacation with pictures of Carhenge (in addition to their pictures of Bear Country).

Ten years without parole in Virginia

John Behan has this post on the 10th anniversary of the abolition of parole in Virginia.

Wahoo football history

Here is some Virginia sports lore I didn't know: "For Virginia, 1952 was the end of a successful run under Art Guepe, the best coach in UVA history before George Welsh. Just the year before, 1951, the infamous Gooch Report on UVA athletics recommended eliminating all athletic scholarships and abandoning intercollegiate football. That same year, Colgate Darden, Virginia's president, decided to forbid the 8-1 Cavaliers from accepting a bowl bid. Art Guepe very wisely chose to jump ship the following year, and the Cavaliers entered a 30-year stroll through the ninth circle of college football hell. There were two winning seasons between 1952 and 1983; one 7-3 year and one 6-5 year with records built, at least in part, by wins over such traditional football powers as VMI, Richmond, Davidson, and James Madison. Then George Welsh arrived and the rest is football history."

Tough on crime in California

No. 84 has this incredible post describing a criminal case where some kind of government lawyer/prosecutor made it onto the jury and the defendant appealed the issue of whether he should have been struck for cause (and lost).

En banc decision in West Virginia jet ski case

In McMellon v. U.S., the Fourth Circuit in an en banc opinion by Judge Traxler, joined by Chief Judge Wilkins and Judges Wilkinson, Williams, King, Shedd, and Duncan, held that there is an implied exception under the Suits in Admiralty to the waiver of sovereign immunity of the United States, under which may fall the claims of the plaintiffs for their personal injuries sustained when their jet skis went over the gates of the Robert C. Byrd Locks & Dam. Judge Wilkinson wrote a concurring opinion. Judge Niemeyer wrote an opinion concurring in part and dissenting in part. Judge Motz wrote an opinion concurring in part and dissenting in part, joined by Judge Michael. Judge Widener dissented outright, concluding that the Fourth Circuit got it right in 1975, expressing his general agreement with parts of the dissents of Judge Luttig and Judge Motz, and adding a quotation from the Eleventh Essay of Brutus, dated 1798. Judge Luttig wrote a dissenting opinion, contending that "[b]y every traditional measure of statutory interpretation, the waiver of the federal government’s immunity from suit in the SIAA must be read not to include an exception for discretionary functions." Judge Gregory wrote a separate dissenting opinion, adding to his general agreement with parts of Judge Luttig's dissent.

One interesting section in the majority opinion was this:

"At the heart of the question presented to this en banc court is the continuing viability of Lane v. United States, 529 F.2d 175 (4th Cir. 1975). In Lane, this court flatly rejected the argument that a discretionary
function exception should be read into the SIAA. After Lane, however, two cases from this circuit arguably applied some form of a discretionary function exception to cases arising under the SIAA. See Tiffany v. United States, 931 F.2d 271, 276-77 (4th Cir. 1991); Faust v. South Carolina State Highway Dep’t, 721 F.2d 934, 939 (4th Cir. 1983).

Because we are sitting en banc, there is no doubt that we have the power to overrule Lane should we conclude it was wrongly decided. See, e.g., United States v. Lancaster, 96 F.3d 734, 742 n.7 (4th Cir. 1996) (en banc). The panel opinions in this case, however, raised the question of whether a panel of this court may likewise overrule a decision issued by another panel. The question of the binding effect of a panel opinion on subsequent panels is of utmost importance to the operation of this court and the development of the law in this circuit. Accordingly, before considering the merits of the discretionary function question, we first address this important procedural issue."

The answer is:

"When published panel opinions are in direct conflict on a given issue, the earliest opinion controls, unless the prior opinion has been overruled by an intervening opinion from this court sitting en banc or the Supreme Court. We recognize, of course, that application of this rule does require a panel to effectively ignore certain opinions duly decided by a properly constituted panel of the court. . . . While we recognize that a three-judge panel has the statutory and constitutional power to overrule the decision of another three-judge panel, we believe that, as a matter of prudence, a three-judge panel of this court should not exercise that power. Accordingly, we conclude that when there is an irreconcilable conflict between opinions issued by three-judge panels of this court, the first case to decide the issue is the one that must be followed, unless and until it is overruled by this court sitting en banc or by the Supreme Court."

In Judge Niemeyer's opinion, this analysis was a mistake in every way, as he writes: "this sua sponte advisory decision amounts to an unfortunate example of judicial hubris. . . . In their briefs, the parties have raised no question concerning our authority to overrule an earlier panel opinion. Nor have they raised the question of whether one panel of this court may overrule another. Even had they done so, our review would not require us to resolve the issue. Whether one panel of this court constituted under 28 U.S.C. § 46 can overrule another so constituted is irrelevant to this en banc review of the district court’s judgment. Accordingly, the majority acts as a volunteer in expositing on this subject, and its exposition is at best an advisory opinion on which the majority received no counsel or briefing from the parties. . . . Even were the majority to consider its decision to fall within some inherent rulemaking authority — a decision no less fraught with the question of judicial power — such a rule would be totally ill-advised and unnecessary. When we recognize that we render opinions on a
case-by-case basis, bringing to bear all applicable and available judicial decisions previously decided, and that we can always resolve intra-circuit splits by en banc rehearings, there simply can be no crisis requiring the issuance of such a rule."

According to this link from Howard Bashman, the rule in the Eighth Circuit is otherwise than what the Fourth Circuit concluded in this case. I wonder, since Howard has aired out the issue a bit himself in the context of this very case, whether his writings had some influence on the inclusion of this discussion in the en banc majority opinion.

The lawyer fever

Once in a rare while, there is the sensation right after a big trial, or arguing an appeal, or sometimes even just settling a case, after an extended and intense effort, when you just nail it and the outcome is fantastic, and your brain is still racing, and you're just plain high on being a lawyer, and you've got to share it with somebody.

A few times I've been the sharer, and a few times I've been the sharee, and when you get one of those calls from somebody you have to laugh at them and laugh with them and egg them on just a bit, and enjoy their moment and recollect a bit of what it's like from your own experience, and it's like nothing else.

The first time I had a bit of that sensation was in a case where the jury awarded each of our two clients roughly $750,000, which would have been tripled under Va. Code 18.2-500. ($750,000 x 2 clients x 3!) Alas, that became the one that got away on post-trial motions, but one of my partners still makes fun of my comments to him right after we left the courthouse.

Wednesday, October 13, 2004

Great article on Larry Sabato

Style Weekly in Richmond has this piece on University of Virginia Professor Larry Sabato.

If the Cavaliers win on Saturday, next week Larry will be only the second most quoted U.Va. employee in the newspapers.

Going all in in Richmond has this feature on playing poker in the Richmond area, in person and online.

Assault by throwing cup at police

In Davis v. Com., the Virginia Court of Appeals in an opinion by Chief Judge Fitzpatrick, joined by Judges Elder and Bumgardner, recited the following facts:

Officer Lisa Kusmin (Kusmin) was one of several police officers who responded to a report of “approximately a hundred subjects fighting in the park” near Third Street and Virginia Avenue. The participants began to scatter, and the officers “spread out through the neighborhood to make sure everybody was leaving the park and not causing trouble.”

Another officer initiated a traffic stop. Appellant walked to the driver’s side of the stopped vehicle. As Kusmin approached her, she became angry and loudly cursed Kusmin. She repeatedly called the officer a “bitch” and said she did not have to do what Kusmin requested. She attempted to evade Kusmin when she tried to stop appellant to speak with her and to determine what was in the cup she carried. When Kusmin and Sergeant Donald Fowler (Fowler) blocked appellant’s route of escape, appellant raised her cup above her shoulder and took aim at Kusmin. Kusmin demonstrated appellant’s actions for the court and testified that the cup moved with a whizzing motion rather than a tossing motion and that she thought the cup “was directed at [her]” and “was going to hit her.” Fowler, too, became “alarm[ed]” when appellant “raised her hand,” and Fowler “immediately reached out” and made “physical contact” with appellant’s left shoulder and arm to throw her off balance. It took three officers to effectuate appellant’s arrest.

The Court affirmed the defendant's convictions for assault and disorderly conduct.

More on Blakely and Virginia

The opinion of the Virginia Court of Appeals in Walshaw v. Com., written by Judge Felton (my criminal law professor), includes a footnote on Blakely, which says:

"In each of the cases cited by appellant, the accused was convicted of a crime charged in the indictment, and the trial judge determined the sentence to be imposed. The sentencing judge was permitted to find aggravating sentencing factors by a preponderance of the evidence, rather than beyond a reasonable doubt. See also Blakely v. Washington, ___ U.S. ___ (June 24, 2004). In the federal system and the vast majority of states, the trial judge sentences the convicted person, even in cases where a jury determines guilt. We note that Virginia has since colonial times provided for jury sentencing in cases tried by the jury. See Walker v. Commonwealth, 25 Va. App. 50, 61-62, 486 S.E.2d 126, 132 (1997). In Virginia, neither the jury nor the trial court can sentence a person to a greater punishment than that established by the legislature for the crime of which that person was convicted. See Abdo v. Commonwealth, 218 Va. 473, 479, 237 S.E.2d 900, 903 (1977)."

On ending the double taxation of attorneys' fees in civil rights cases

All Deliberate has this post heralding what may be the end of double taxation of attorneys' fees in federal employment discrimination cases.

Tuesday, October 12, 2004

Waldo declares next year's AG race over

Waldo J. says here the recent criticisms by columnist Ed Lynch about the record of State Sen. Creigh Deeds don't amount to much, and won't prevent his election as Attorney General of Virginia in 2005.

Waldo says: "If this is the best criticism that the Republicans can muster, Creigh's got that seat as good as locked up for November of '05."

The cost of trying and retrying Richard Burrow

In this report ("Cost to try Burrow likely was 'extensive,'" 10/12/04), the Roanoke paper takes on the question of how much did it cost for the United States to prosecute D-Day memorial fundraiser Richard Burrow through two trials in the W.D. Va. The answer: nobody knows.

Studying Southwest Virginia's Mount Rogers to figure out volcanos

According to this report in the Roanoke paper, rocks from atop Mount Rogers up the road here in Southwest Virginia provide clues about volcanoes elsewhere.

Former lion handler brings wrongful discharge suit seeking $51 million

A former employee of the circus has filed a wrongful discharge suit in Norfolk, claiming his employment was terminated because he talked about the reasons for the death of a circus animal, according to this report ("Former lion handler files suit over his dismissal," 10/12/04) in the Norfolk paper.

More on termination of parental rights

The Roanoke paper has another story ("Hospital stay," 10/12/04) about termination of parental rights, this article featuring a client in Tazewell County of attorney Hugh O'Donnell, a zealous advocate if ever there was one for the poor of Southwest Virginia.

Monday, October 11, 2004

Judge Annunziata retiring

In the current version of the VBA Electronic Journal, there is a news item that says Judge Annunziata of the Virginia Court of Appeals is retiring, effective January 1, 2005.

I must have missed that in VLW.

UMWA leadership declares for Kerry

The president of the United Mine Workers, Cecil Roberts, says that President Bush is no good for miners, according to this Labor Blog post.

How Virginia colleges and universities credit AP tests

The Norfolk paper reports here ("Advanced Placement courses get mixed reception in Va. colleges," 10/11/04) on the scores required to get credit for Advanced Placement tests at different colleges in Virginia.

In my day, the University gave me course credits for my AP scores in English, American History, Calculus, and Chemistry - and as a result, I never had to take any science or math in college, and I graduated in three years. So, $160 for those 4 tests saved us about $10,000. I wish I could find more deals like that.

Norfolk paper condemns eminent domain abuse

The Norfolk paper has this commentary on the eminent domain case now before the U.S. Supreme Court, and takes note of a couple of Virginia cases:

"Hampton Roads officials are not immune to similar temptations. A few years ago, the Virginia Beach City Council condemned an Oceanfront restaurant for a garage to serve visitors and guests of a resort hotel, citing “public use.” But a Virginia Beach judge, H. Thomas Padrick Jr., saw it for the subterfuge that it was. He found that that the hotel, not the public, was the principal beneficiary of the garage and halted the taking. . . .

An example more closely resembling the issues in the New London case occurred two years ago in Chesapeake. A shopping center builder asked for the city government to pave his way into valuable, but bottle-up, land just off Battlefield Boulevard. Not literally pave it with road crews, but figuratively with eminent domain.

He pledged $4 million to build the road, sparing taxpayers the expense. In return, he asked the council to condemn two gas stations whose owners had refused to sell their land to the developer.

The road to the shopping center would have gone through the gas stations. The enthusiasm for the deal was motivated by the windfall it would have created for the city treasury.

Public opposition and wiser heads prevailed, but barely. The move was blocked on a vote of 5-4."

Learning about life on the outside after 22 years in prison

The Norfolk paper has this interesting article ("Man exonerated by DNA evidence returns to a different world," 10/10/04) on the adjustments made by a man release from a Virginia prison after he was wrongfully convicted 22 years ago.

Enjoying a few days in the sunshine

Doug Doughty points out here that Virginia is ranked higher than Florida State going into this weekend's game, and it is the highest rank the Cavaliers have held since 1990, the year we were married (when my old college roommate said he would come to the wedding but he might have a radio in his pocket).

Southwest Virginia women in coal mining

The Bristol paper had this interesting article ("Coal mining isn't just a man's world," 10/10/04) about women who worked as miners.

Sunday, October 10, 2004

On the process for termination of parental rights in Virginia

The Roanoke paper reports here ("Broken bonds: child welfare and the battle over terminating parents' rights," 9/10/04) on the law of termination of parental rights in Virginia, by describing a recent split decision by a panel of the Virginia Court of Appeals including Judges Willis, Coleman, and Benton.

The article begins, stupidly, "Donna Faye Smith's fate as mother was decided, in the end, by three judges she'd never met." Of course, if the judges were people she knew, they might have recused themselves.

22 different kinds of voting machines in Virginia this November

The Washington Times reports here that all kinds of changes have been made in voting technology in Virginia for this year's election.

Witchcraft trials in Maryland and Virginia

The AP has this story on the history of withchcraft trials in Maryland and Virginia.

Norfolk paper says Virginia wrong on death penalty for teens

The Norfolk paper opines here that Virginia is wrong about the death penalty for 16 and 17 year-old murderers.

Pondering whether to make Virginia drivers' licenses smart reports here that Virginia legislators are hearing about technology to make it more difficult to counterfeit or steal drivers' licenses.

On the effect of Blakely in Virginia

CrimLaw links here to this report on the effect of the Blakely case in Virginia, which has bifurcated criminal trials and jury sentencing.