Friday, December 17, 2004

Another Virginia blog on the right

This bunch claims to be "The Commonwealth of Virginia's Ultimate Blog."

I'll add them to the list directly. One thing they are talking about as is Waldo (from the other direction) is this article about whether State Sen. Potts will quit the Republicans and run for governor against Kilgore and Kaine.

Virginia's escape statutes

Almost a dozen years ago, I had a criminal case where the defendant was stopped in the rain on suspicion of drunk driving, sat in the police car for a while, then ran off and got charged with escape under Va. Code 18.2-479.

I wrote a brief that said there was no escape because the accused was not in custody, and Judge Flannagan agreed.

Earlier this week, interpreting the similar language of Va. Code 18.2-478 in Coles v. Com., the Virginia Court of Appeals in an opinion by Judge Annunziata held that the defendant could not be guilty of escape because he was not in lawful custody when no criminal process had issued.

Judge Stump to retire as circuit court judge in 30th Circuit

The Coalfield Progress has this report on the upcoming retirement as an active-duty judge by Judge Robert Stump, for whom a successor will be named in the next session of the General Assembly.

The article notes: "Wise County attorneys Tim McAfee, Greg Stewart, Leonard Rogers, Bill Bradshaw and Walt Rivers are vying for the appointment, along with Tammy McElyea, commonwealth attorney in Lee County."

The article notes that Virginia judges must retire at age 70. Judge Birg Sergent, also of the 30th Circuit, was born in 1937 (according to, and so he may be retiring in 2007.

Chief Judge Jones says no Princess Lida here

In Pax, Inc. v. Veolia Water North America Operating Services, Inc., Chief Judge Jones ruled, among other things, that the plaintiff's motion to remand the case to state court or abstain based on the Princess Lida doctrine should be denied.

The Princess Lida doctrine has something to do with the federal courts not getting involved with property over which a state court (or another court) has assumed jurisdiction, most probably in rem jurisdiction. The Court ruled, in essence, that there was no in rem aspect to the claims that were removed. The other part of the ruling was to reject the defendant's venue argument based on a forum selection clause.

Normally, I don't cite to opinions involving my own firm, but how often do you come across the Princess Lida doctrine?

RIAA suits filed in Virginia

The Norfolk paper has this report ("Five local people sued over music file-sharing," 12/16/04) on some file-sharing suits brought by the Recording Industry Association of America in the Eastern District of Virginia.

Bluefield paper takes on WV legal system

The Bluefield paper editorializes here against the civil justice system in West Virginia.

Thursday, December 16, 2004

Ah, more typography madness

Painting with Print, a great article if ever there was one, says among other things:

"The practice of using two spaces between sentences and indented first lines to begin the new paragraph are merely remnants of days when attorneys had only typewriters at their disposal and were forced to use a monospaced font."

Within the last week, a lawyer somewhere in these United States went through my draft of a document and he or she added a space after each period, and when I got it back, I typed "Command-H" (find and replace) and replaced all those double spaces with single spaces.

Hmm, so much for that CERCLA contribution claim

In Cooper Industries, Inc. v. Aviall Services, Inc., the U.S. Supreme Court held that a party may not sue potentially responsible parties for contribution under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) after the plaintiff has incurred cleanup costs but before the plaintiff itself has been sued for cleanup costs.

Does this mean it just doesn't pay to clean up before being sued, if there is someone else ought there who is also potentially responsible? There is some kind of chicken and egg problem here.

Still knowing when to say Whren

In Devenpeck v. Alford, the U.S. Supreme Court in an opinion by Justice Scalia considered the question of "whether an arrest is lawful under the Fourth Amendment when the criminal offense for which there is probable cause to arrest is not 'closely related' to the offense stated by the arresting officer at the time of arrest."

The answer, based on the Whren case, is yes.

Good new qualified immunity case

A while back, I wrote an article about qualified immunity in section 1983 cases, and the law continued on, and my few points of understanding about this area of the law continue have been sometimes reaffirmed in the case law in subsequent cases, including Brosseau v. Haugen, a per curiam opinion from the U.S. Supreme Court issued on December 13, an excessive force case in which the Court overturned the denial of qualified immunity by the Ninth Circuit.

Fairfax lawyer files complaint against U.S. Attorney for going easy on Republicans

The Charlottesville paper had this version about the story of a Northern Virginia lawyer filing a complaint with the government alleging that the U.S. Attorney for the Eastern District of Virginia went easy on the hierarchy of Virginia Republicans in connection with the Matricardi affair.

Special prosecutor named for Gate City election

From earlier this week, the AP reported here that the Commonwealth's Attorney from Botetourt County, Joel Branscom, has been appointed as the special prosecutor for matters related to the Gate City town elections.

Delegate on a mission from God, plans to run against Boucher in 2006

It says here: "Fifth District Del. Bill Carrico, R-Fries, says the Lord is calling him to run for Congress [in 2006], and he's listening."

The link is from, where seldom is seen an encouraging word about Virginia Republicans.

Sunday, December 12, 2004

SVLAS' Larry Harley among Virginia's Legal Elite

Virginia Business has come out with this year's list of the "Legal Elite" within the Commonwealth, and one category this year is Legal Services/Public Services, and one of those on the list is Larry Harley, the head man of the Southwest Virginia Legal Aid Society.

Anatomy of a medical malpractice case in Virginia

As background to the debate over the need for further changes of the law in Virginia, the Richmond paper has this compelling article ("Medicine may fail, and justice might not heal," 12/12/04) detailing a medical malpractice case against an obstetrician tried in Danville. The article includes comments from the lawyers and the litigants.

More on Virginia football bowl mess

Jerry Ratcliff, still the Man for U.Va. sports at the Daily Progress as he was back in the day when I ate the fried chicken in the press box, has this column with more on the goofiness of U.Va. going to a bowl game in Idaho in December. I mean, that's weird.

The only thing good about is that the other team, Fresno State, is kind of interesting. I'm unaware of any prior Fresno State - U.Va. connection, except in the person of Courtney Alexander, the basketball player who transferred from Charlottesville and Thomas Jefferson to Fresno and Jerry Tarkanian.

Highland County heads to the Capitol to see their tree

The Washington Post reports here ("Town Follows the Light Of a Tree in the East," 12/12/04) on a bunch from Virginia who went to D.C. to see the Christmas tree from their hometown standing in the U.S. Capitol building.

Some W.D. Va. lawyers mad about Chief Judge Jones' decision to cut some fees in the Church case

The Roanoke paper reports here ("Lawyers decry pay-cut ruling in capital case," 12/12/04) that some local lawyers are upset with the analysis by Chief Judge Jones of W.D. Va. in cutting the fee application for one bunch of lawyers in the successful defense of the Pocahontas murder cases.

The sources quoted in this article say many interesting things. One is that the federal government stirs these costs by seeking the death penalty in the wrong cases. Another is that there is something ex post facto about cutting fees after the case is over without some kind of advance notice about the limitations. A third is that why should the defense lawyer, and no one else, be the one to take a pay cut when a case costs too much.

Blog rules, mostly broken

It says here bloggers should blog as often as they eat, not blog at work, and not blog about work.

I've been doing it all wrong. For one thing, I need to get more food.

More on the irrationality of sex laws

Balkinization has this post with links and discussion on the topic of how "raising a legal obstacle to first-time sex without a condom would reap benefits for public health."

Would those public health benefits make such a law constitutional? They would seem to supply the rationale the Supreme Court missed in Lawrence v. Texas.