Thursday, December 29, 2005

Virginia and the Uniform Trust Code

In Virginia and the Uniform Trust Code, the Wills, Trusts & Estates Prof Blog says:

"John E. Donaldson (Ball Professor of Law, Emeritus, College of William and Mary, Marshall-Wythe School of Law) and Robert T. Danforth (Associate Professor of Law and Alumni Faculty Fellow, Washington and Lee University School of Law) have recently published their article entitled The Virginia Uniform Trust Code, 40 U. Rich. L. Rev. 325 (2005)."

More on the lack of more money for defense of indigent criminal defendants

I agree also with this Roanoke Times editorial that says the Commonwealth should find a way to pay more for lawyers for the poor in criminal cases.

Wednesday, December 28, 2005

No more money for defending the poor

Kudos to the Norfolk paper for this editorial which says that Governor Warner should have proposed more money for lawyers for the poor in criminal cases.

Richmond beaver shot

The Times-Dispatch has this short story with many comments about how authorities at a Richmond-area botanical garden shot and killed a beaver that had been making a nuisance of his (or her) little fuzzy brown self.

From the comments:

"The beaver was a pest? I know some people who are pests, should they also be shot?"

"What happens when a citizen clubs to death an attacking alligator in the James? He gets fined. But an innocent beaver is executed for gnawing shrubs. Where's the justice?"

"It's okay as long as you make a hat from the hide and stew from the meat."

Tuesday, December 27, 2005

Does the insurer's reservation of rights letter give the insured the right to hire its own counsel at the carrier's expense?

In Twin City Fire Ins. Co. v. Ben-Arnold Sunbelt Beverage Co., the Fourth Circuit in an opinion by District Judge Devers, joined by Judge Luttig and Senior Judge Hamilton, took the interesting question of whether, upon an insurer's issuance of a reservation of rights letter, the counsel retained by the insurer for the insured has a conflict of interest, such that the insured has the right to choose its own counsel and have the insurer pay for it.

The answer, under the facts of the case and South Carolina law, is no.

On the poor Kentucky man and the surgeon from the Congo

Here, in a very interesting and provocative article, the Economist compares the lives and fortunes of a fellow on disability in Eastern Kentucky and a physician in Africa.

The man from Hazard gets $521 per month in SSI benefits. The doctor in the Congo gets about $600-700 per month.

The author explains and asks:

"Why juxtapose the lives of a poor man in a rich country and a relatively well-off man in a poor one? The exercise is useful for two reasons. First, it puts the rich world's wealth into context. A Congolese doctor, a man most other Congolese would consider wealthy, is worse off materially than most poor people in America. That, in itself, is striking.

The second purpose of the exercise is to shed light on some ticklish questions. What is the relationship between wealth and happiness? And what is the significance of relative poverty? Mr Banks makes $521 a month in a country where median male earnings are $3,400 a month. Dr Kabamba earns $600 a month in a country where most people grow their own food and hardly ever see a bank note. The two men's experiences could hardly be less similar. But which of the two would one expect to be happier?"

The author concludes:

"The point of this article is neither to mock Mr Banks nor to praise Dr Kabamba. Both have their virtues and flaws, and your correspondent cannot reliably judge which is the happier. But here are two concluding observations. First, if poor Americans were to compare their standard of living with what is normal elsewhere in the world, let alone in Congo, they would see they have little cause for discontent. Then again, were Americans not so incurably discontented with their lot, their great country would not be half as dynamic as it is."

Read the whole thing.

Monday, December 26, 2005

Brian Wills has got it wrong

Brian Wills wrote an ignorant column about the '72 Dolphins.

The idea that the old Dolphins gather for champagne has been debunked as a myth, this year if not before.

And, even when I thought it was true, I thought it was great, myself.

Thursday, December 22, 2005

On whether federal inmates sued in federal court get guardians ad litem

In Buchanan County v. Blankenship, Chief Judge Jones of the W.D. Va. denied the request of some of the incarcerated defendants for the appointment of guardians ad litem.

Since I'm in the case, I won't say anything about it, except that Judge Jones thought the issue was interesting enough to submit the opinion for publication in the Federal Supplement.

Wednesday, December 21, 2005

The budget for the court system in Virginia

Bacon's has been blogging the budget, including the judicial system.

It says 3,100 jobs and a budget of $330 million are the current figures.

On using the c-word

Via Overlawyered, I read this article about the black defense lawyer who, after a losing a trial, rode the elevator with some of the the jurors from the case and called them "just a bunch of crackers," and it makes me think of that SNL skit with Richard Pryor and Chevy Chase conducting a word association exercise, first broadcast 30 years and eight days ago. (Amazing, that long ago?)

Judge Posner on the economics of capital punishment

In this remarkable post, Judge Posner explains that there is evidence that the death penalty has a deterrent effect, citing one study which shows that "one execution deters 18 murders," and expressing his view that "[t]he number of people who are executed for a murder they did not commit appears to be vanishingly small," while concluding that "even with the existing, excessive, delay, the recent evidence concerning the deterrent effect of capital punishment provides strong support for resisting the abolition movement."

The Padilla case

Steve Emmert at Virginia Appellate News links to today's opinion in the Padilla case, in which Judge Luttig joined Judge Michael refused to accommodate what Judge Luttig suggested appears to be the government's efforts to prevent the Supreme Court from reviewing the earlier panel decision in the case, deciding instead that the Supreme Court ought to have a chance to review the earlier opinion in the case.

Judge Luttig goes on explain his view that the government is making a big mistake by its handling of this case:

"For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake –- an impression we would have thought the government could ill afford to leave extant. They have left the impression that the government may even have come to the belief that the principle in reliance upon which it has detained Padilla for this time, that the President possesses the authority to detain enemy combatants who enter into this country for the purpose of attacking America and its citizens from within, can, in the end, yield to expediency with little or no cost to its conduct of the war against terror –- an impression we would have thought the government likewise could ill afford to leave extant. And these impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today. While there could be an objective that could command such a price as all of this, it is difficult to imagine what that objective would be."

Tuesday, December 20, 2005

On the passing of a Southwest Virginia blogger

From Smyth County, Julie Whitt wrote Breath of Heaven, and her friends wrote about her here. In her writing, she was full of love and hope, hope for a day when she could be healthy, and be a mom, and grow old with her husband.

On December 12, 2005, a week before she died, she wrote this post, which says in part:

"It’s not easy being stuck in a body that doesn’t work, but at least I have a chance at a way out. There’s a commercial that reminds me of me. A girl is walking down a city street listening to her mp3 player. She passes a building with reflective windows and you see her reflection dancing to the music. In reality she’s just walking, but she’s dancing in her mind. I’ve been dancing in my head for 17 years. I’m very eager to be the girl dancing in the reflection."

Monday, December 19, 2005

Mr. Kilgore's new job

Here, the Williams Mullen firm announced the formation of its "Multistate Corporate Compliance & Public Policy Group" led by Jerry Kilgore.

Newsweek covers the Virginians

In this article, Newsweek profiles Governor Warner and Senator Allen, but without any James Drury (he played The Virginian on TV).

Speaking of the Virginians, today I was in the presence of John Brownlee and Chad Dotson at the same time, in the same room, and without any criminals present.

Sunday, December 18, 2005

On citation to unpublished opinions

HOWT explains here why citation to unpublished opinions should never be a problem: "If we have done our job properly, there is no need to ever cite an unpublished opinion because, theoretically at least, there should be a published opinion on the same point."

ALso, he notes: "an unpublished opinion is not circulated beyond the members of the panel while a published opinion is circulated to the full court for review and comment (although only the members of the panel have a vote on the outcome)."

These are good reasons why an unpublished opinion is less persuasive, but not good reasons for prohibiting an enterprising lawyer to cite an unpublished opinion, and make of it whatever he can.

Interesting profile of Richmond deputy prosecutor soon to leave office

In this article, the Richmond paper chronicles the colorful life and times of Tony Spencer, who is leaving office with his friend and colleague the Commonwealth's attorney in Richmond.

Here's one provocative sentence: "Sandwiched between stints as a practicing attorney, Spencer tended bar, played trumpet in a ska band and taught English in Spain."

Saturday, December 17, 2005

What might be next on the lame duck governor's agenda?

This Votelaw post links to this post which calls on Governor Warner to give back the right to vote to 200,000+ convicted felons in the Commonwealth, claiming that "Virginia is one of only four states that disenfranchise all former offenders for life, even after they complete their sentences (the other three are Alabama, Florida, and Kentucky). These four states along with Armenia are the only democracies in the world that disenfranchise all former offenders for life. 80% of Americans believe that those who have served their time should be allowed to vote."

Unlikely new ban on employment discrimination by the Commonwealth

The Washington Post reports here that Virginia Governor Mark Warner has imposed by executive order a prohibition against discrimination in employment by the agencies of the Commonwealth against homosexuals.

I would expect 90% of the General Assembly, including all of the Republicans, all of the rural legislators, and most of the rest, to vote against this, but then again I never thought Kaine would get elected, so what do I know?

I would think that Virginia's idea of an appropriate non-discrimination statute for state employees is Va. Code § 2.2-2902, which says in part: "No employee of or applicant for employment with the Commonwealth shall be required, as a condition of employment, to smoke or use tobacco products on the job, or to abstain from smoking or using tobacco products outside the course of his employment."

On the withholding of taxes from the proceeds of a Title VII settlement

In Rivera v. Baker West, Inc., the Ninth Circuit in an opinion by Judge Bybee considered the plaintiff/appellant's two contentions regarding the District Court's ruling that the employer was correct in paying taxes out of the settlement money for a Title VII claim:

The appellant's position was this: "first, he argues that the settlement proceeds paid by Baker were intended to reimburse Rivera for personal physical injuries and should therefore be excluded from his gross income under 26 U.S.C. § 104(a)(2); second, he argues that, even assuming the settlement proceeds represent lost wages, an award of back pay under Title VII is not subject to income tax withholding."

The Court ruled that "the district court did not clearly err in finding that the settlement proceeds were not intended to compensate for personal physical injuries, but instead represented lost wages," and "[b]ecause the district court reasonably classified the settlement proceeds as back pay, the district court properly held that Rivera’s settlement proceeds were subject to withholding."

The Court noted that the settlement agreement "does not expressly state that the damages paid to Rivera compensate for personal physical injuries or physical illness" and explained that "if there is no express evidence of the parties’ intent in the settlement agreement, we look to the intent of the payor." There was language in the settlement agreement "stating that Baker would pay Rivera $40,000 'less all lawfully required withholdings.'"

In concluding that the wage part of a settlement agreement under Title VII is subject to withholding taxes, the Court cited the Fourth Circuit's opinion in Hemelt v. United States, 122 F.3d 204 (4th Cir. 1997), along with opinions from the Sixth and Eighth circuits.

That's us, for sure

Dad printed this one out and I liked it so much I posted it on here. It is of Dana and me, having a good day in Savannah. Posted by Picasa

Friday, December 16, 2005

On Junior Cox and the Feed Room

I hope that fans of the Feed Room downtown in Bristol read this article on Junior Cox and will go by there before the restaurant closes at the end of the month and give him and Mary Ann all the money that's in your pocket and shake hands with Jean - out of admiration for a job well done.

I guess I've eaten there 100 times, and had take-out delivered by Junior another couple dozen times, including three meetings in a row last month. Anybody who had a lunch meeting with me in my office in the past five years (or is it 10?) got chicken salad in a pita, vegetable soup, chips, and sweet tea from the Feed Room. It has been my wife's favorite place to eat lunch in Bristol.

The Feed Room space was a lunch counter back at the time of this postcard of State Street from the 1940s, which shows the H.P. King building on the right.

Thursday, December 15, 2005

Martinsville prosecutor wins defamation case against news organization for publishing criminal defendant's letter to editor

The Roanoke paper reports here about the plaintiff's verdict in the very interesting case in which the Commonwealth's attorney sued a local tabloid and won a $75,000 verdict for defamation on account of the tabloid's publication of a letter from a criminal defendant in which were made serious allegations against the prosecutor.

The big Illinois tobacco verdict gets reversed

In Price v. Phillip Morris, the Illinois Supreme Court reversed the $10 billion judgment against the tobacco company.

Wednesday, December 14, 2005

Man sues rape victim after DNA clears him despite her identification of him as the criminal

The Daily Progress reports here that a Virginia man against whom a charge of rape was dismissed because of DNA evidence is suing the victim who pointed him out in court as the man who raped her.

Courtroom testimony is generally privileged, I wonder what the victim said before that.

On software piracy

The Washington Post reports here that the federal court in Alexandria heard the guilty plea of Nathan Peterson, age 26, who pirated $20 million worth of software by illegally selling copies over the Internet, at a profit of $5.4 million to himself.

Supposedly, his website now says: "This site has been permanently shut down by the Federal Bureau of Investigation and the Department of Justice."

On tort reform in West Virginia

This editorial notes that medical malpractice rates may soon go down in West Virginia.

It did not comment on whether the changes in the law were the cause as opposed to improvements in the stock market.

Both sides trying to oust the lawyers from the criminal case against the former mayor of Lynchburg

According to this AP report, not only is are the prosecutors seeking disqualification of John Fishwick from the defense team in the Carl Hutcherson case, but also the defense team is seeking disqualification of Tom Bondurant and the rest of the W.D. Va. prosecutors because Mr. Bondurant, like Mr. Fishwick, will be a witness on the charge against Mr. Hutcherson for lying to a government official.

Musician-debtors about to lose their instruments in latest chapter of the Audubon Quartet case

For several years, the Roanoke paper has described the dispute among the members of a string quartet, which appears to be reaching its conclusion, as one of them is about to collect on his judgment against two of the others by taking their instruments, as part of their bankruptcy cases. As the Roanoke paper reports here, the "tools of the trade" exemptions to which the debtors are entitled under Virginia law are not nearly enough to cover their valuable instruments. Once their estates are liquidated and the proceeds paid over to the creditors, I suppose the remainder of the debt is discharged, unless I am misreading what the paper has reported.

Regent law grad specializes in ordinances restricting adult businesses

An Arizona paper has this profile of Scott Bergthold, a graduate of the law school at Regent in Virginia Beach and lawyer practicing out of Chattanooga, who specializes in writing "regulations for governments across the country that tighten restrictions on strip clubs and adult bookstores by banning alcohol consumption, nudity and contact between dancers and customers."

Perhaps he will come and share the knowledge some day with the LGA, whose members include the Virginia experts on this topic.

Why root for No. 35 at the Virginia games

Here is the good story of Drew Shiembob, a freshman walk-on with the University of Virginia basketball team.

The new justice of the Tennessee Supreme Court

This page from the TBA website has a group of pictures from the investiture ceremony for Justice Cornelia Clark of the Tennessee Supreme Court.

Tuesday, December 13, 2005

On the lone juror

I just read an article that says Lone juror caused Merck's Vioxx mistrial.

At lunch today, I told a tale of a civil case I defended in federal court, where one of the jurors called me after the trial, and told me that the initial vote on liability was 6-1 for the defense but the 6 eventually gave in to the one and gave the plaintiff a little bit of money, so little that plaintiff's counsel filed a motion complaining that the amount was lower than the law would allow.

The call set me into a panic for a while as I tried to figure out whether I had done something wrong in listening to a juror talk about a case. Ultimately, I was advised to put whatever he said out of my mind, because there was nothing I could do about it and the jurors are prone to lie - the ones that say they were in there pulling for you are the ones that were most likely blackening your name.

Parsing the Roanoke Times editorial on the ruling re: optical scan ballots

They said: "A three-judge panel of the Richmond Circuit Court issued rules last week for a retabulation -- not a recount -- in the razor-thin attorney general's election. Without double-checking ballots, questions will linger over whether more Virginians voted for Robert McDonnell or Creigh Deeds."

I say, what? The vote is being re-counted the same way it was counted the first time, by looking at the printouts from the optical scan machines.

They said: "The Richmond judicial trio received the unenviable task of setting the rules for next week's recount. Though both candidates agreed on most of the rules, the judges undermined the integrity of the process by choosing not to recount about 500,000 ballots cast on optical-scan forms and punch cards."

I say: There was no authority for this request under Virginia law, as the lawyers for Deeds conceded and the panel so held.

They said: "Deeds' attorneys argued election officials should run those ballots through tabulating machines again, separating out undervotes -- ballots on which it appears neither candidate received a vote -- for review. That way if, for example, a machine missed a Roanoke absentee voter's choice because he colored outside the bubble, officials could count the vote."

I say: Undervotes are normal. The existence of an undervote is no evidence that the vote count for the Attorney General's race is wrong.

They said: "McDonnell's attorneys opposed that move, arguing that reprocessing the ballots could introduce new errors."

I say: Why not? Virginia law is on their side.

They said: "The judges sided with McDonnell. Election officials next week will mostly just double-check their math, rerunning ballots only if the court finds something wrong with printouts from the initial tabulation."

I say: The judges applied the law, blame the legislature if you don't like it. See Va. Code § 24.2-802 ("The redetermination of the vote in a recount shall be conducted as follows: . . . 4. For optical scan tabulators, the recount officials shall first examine the printout to redetermine the vote. Only if the printout is not clear, or on the request of the court, the recount officials shall rerun all the ballots through a tabulator programmed to count only the votes for the office or issue in question in the recount and to set aside all ballots containing write-in votes, overvotes, and undervotes. The ballots that are set aside and any ballots not accepted by the tabulator shall be hand counted using the standards promulgated by the State Board pursuant to subsection A.").

They said: "That is not much of a recount. Officials cannot find miscounted votes if they only make sure they carried the seven. No doubt the first tabulation had a minimal margin of error, but its closeness demands extra scrutiny the second time round."

I said: See all of the above.

They said: "The panel left Deeds the option of challenging ballots on a locality-by-locality basis. Things will get ugly if his campaign cherry picks localities with heavy Democratic registration for challenges."

I said: I hadn't heard that one, the undervotes they were complaining about were in Chesterfield and Virginia Beach.

They said: "No one wants this recount to degenerate into Florida's 2000 debacle with officials peering at hanging chads, but next week's recount goes too far in the opposite direction by removing nearly all chance for correcting mistakes."

I said: Watch what happens. Don't blame judges for applying the law. If the law is no good, write a note to the governor.

Monday, December 12, 2005

Sheriffs - state or local

CrimLaw asks: Are Sheriffs state or local government officials?

The answer in Virginia, for the most part is: state.

Virginia sheriffs sued in their official capacities are "state" rather than local government offices for purposes of the Eleventh Amendment and are not "persons" for purposes of section 1983. See Blankenship v. Warren County, 918 F. Supp. 970, 974 (W.D.Va. 1996), on reconsideration, 931 F. Supp. 447, 449 (W.D.Va. 1996) ("[T]he court concludes that the Sheriff and the Sheriff’s Department are arms of the Commonwealth of Virginia and that they, therefore, are entitled to invoke the defense of immunity from suit pursuant to the Eleventh Amendment") (Michael, J.); McCoy v. Chesapeake Correctional Center, 788 F. Supp. 890, 893 (E.D.Va. 1992) (Doumar, J.) (holding that city jail and sheriff department employees are state offices and officials for purposes of Will and the Eleventh Amendment; "[i]n Virginia, sheriffs are state officials, VA. CODE ANN. § 15.1-40.1 (1991), whose positions are constitutionally created, VA. CONST. ART. VII, § 7").

In a wide variety of contexts, the courts have held that Virginia sheriffs are state and not local officials. See Strickler v. Waters, 989 F.2d 1375, 1390 (4th Cir.), cert. denied, 510 U.S. 949 (1993) (Portsmouth, Va., sheriff not considered local official); Jenkins v. Weatherholtz, 909 F.2d 105 (4th Cir. 1990) ("In Virginia, a sheriff is an independent constitutional officer whose duties and authority are defined by statute"); Perdue v. Penalosa, 1994 WL 559140 (4th Cir. 1994) (unpublished per curiam) (city jail run by sheriff’s department not a "person" under Will as a state agency); Brickey v. Smyth County, 944 F. Supp. 1310 (W.D.Va. 1996) (Jones, J.) (deputy sheriffs are not county employees for purposes of the FLSA); Keathley v. Vitale, 866 F. Supp. 272, 276 (E.D.Va. 1994) (Clarke, J.) (Virginia Beach sheriff "is a 'constitutional officer' who serves "independent of municipal government"); Olivo v. Mapp, 838 F. Supp. 259, 261 (E.D.Va. 1993) (Virginia sheriff serves independent of state government and his duties prescribed by state statute); Himple v. Moore, 673 F. Supp. 758, 759 (E.D.Va. 1987) ("in Virginia, the sheriff is a constitutional officer who serves independent of county and city governments"); Sherman v. City of Richmond, 543 F. Supp. 447 (E.D.Va. 1982) (same); Hilton v. Amburgey, 198 Va. 727, 96 S.E.2d 151 (1957) (sheriff considered to be state rather than local employee); Board of Supervisors of Rockingham County v. Lucas, 142 Va. 84 (1925) (deputies not local employees); Burch v. Hardwicke, 71 Va. (30 Gratt.) 24, 35-36 (1878) (sheriff characterized as state employee).

On the victim's identification of the criminal and qualified immunity

In McKinney v. Richland County Sheriff's Department, the Fourth Circuit in an opinion by Judge Luttig, joined by Judges Williams and Michael, reversed the denial of qualified immunity in a case where a teacher sued the law enforcement officer, who had obtained a warrant against him because the nine year-old crime victim had identified the plaintiff as the criminal. The Court ruled, the crime victim's identification was enough to satisfy the requirement of probable cause.

No sauce for the goose

In Wendt v. Leonard, the District Court found that because of the Anti-Injunction Act which limits the ability of courts to act to prevent state law tax collection efforts, it had no subject matter jurisdiction to enjoin the defendants from seizing the plaintiff's boat for unpaid taxes, and then awarded attorneys' fees against the plaintiff under 42 U.S.C. § 1988.

The plaintiff thought about this for a while and then filed a motion under Rule 60(b)(4) as to the fees, claiming that the fee award must be void, because if the District Court had no subject matter jurisdiction over the merits, then it was similarly powerless as to the attorneys' fees.

The Fourth Circuit, in an opinion by Judge Traxler, joined by Judge Gregory and District Judge Harwell, affirmed the denial of the post-judgment motion, concluding that section 1988 gives the district courts the power to impose attorneys' fees in cases filed under section 1983, even those over which the court lacks subject matter jurisdiction.

Just in time for Christmas

In Rogers v. United States Postal Service, the plaintiff sued the Postal Service in the amount of $500 seeking indemnification for a piece of insured mail she sent from the Virgin Islands, where the plaintiff's client's agent signed for the package and then the client never got it.

In the opinion, Judge Turk granted summary judgment for the Postal Service.

Sunday, December 11, 2005

On the late Carl Smith

This article describes Carl Smith from Wise County, who gave millions to the University of Virginia for projects in Charlottesville and in Wise, and who died last week at age 78.

On using less paper

This CSM article begins: "For office innovators, the unrealized dream of the 'paperless' office is a classic example of high-tech hubris. Today's office drone is drowning in more paper than ever before.

But after decades of hype, American offices may finally be losing their paper obsession. The demand for paper used to outstrip the growth of the US economy, but the past two or three years have seen a marked slowdown in sales - despite a healthy economic scene."

The state bar associations of the United States

I wanted a list of the state bar associations and surprisingly didn't find one to my liking, so I made this one:

Alabama State Bar
Alaska Bar Association
Arkansas Bar Association
State Bar of Arizona
State Bar of California
Colorado Bar Association
Connecticut Bar Association
Delaware State Bar Association
The District of Columbia Bar
The Florida Bar
State Bar of Georgia
Hawaii State Bar Association
Idaho State Bar
Idaho State Bar Association
Illinois State Bar Association
Indiana State Bar Association
Iowa State Bar Association
Kansas Bar Association
Kentucky Bar Association
Louisiana State Bar Association
Maine State Bar Association
Maryland State Bar Association
Massachusetts Bar Association
State Bar of Michigan
Minnesota State Bar Association
The Mississippi Bar
The Missouri Bar
State Bar of Montana
Nebraska State Bar Association
State Bar of Nevada
New Hampshire Bar Association
New Jersey State Bar Association
New York State Bar Association
State Bar of New Mexico
The North Carolina State Bar
State Bar Association of North Dakota
Ohio State Bar Association
Oklahoma Bar Association
Oregon State Bar
Pennsylvania Bar Association
Rhode Island Bar Association
South Carolina Bar
State Bar of South Dakota
Tennessee Bar Association
State Bar of Texas
Utah State Bar
Vermont Bar Association
Washington State Bar Association
The West Virginia State Bar
State Bar of Wisconsin
Wyoming State Bar

On Judge Cridlin

I wasn't there, but I read in the Powell Valley News that Judge Joseph N. Cridlin was the grand marshal of the Christmas parade this year in Jonesville.

The newspaper article says in part:

"He graduated from Jonesville High School in 1929 and attended The College of William & Mary in Williamsburg, obtaining his law degree. Cridlin credits his decision to become a lawyer to his father, George P. Cridlin, who began practicing law in Jonesville in 1901. . . . Cridlin began practicing law in 1935 and was appointed Circuit Court Judge in 1960, seving until his retirement in 1974.

. . . Cridlin also commented that he resides on his farm and enjoys 'coming to town' with his daily business duties conducted at Cridlin Law Office."

Saturday, December 10, 2005

On buying local stuff

A new one on me is this site, where you find things to buy that were "Grown, Crafted and Manufactured in Northeast Tennessee & Southwest Virginia."

The Virginia State Board of Election's standards for recounts of Virginia elections

Revised as of November 28, 2005, the State Board of Elections has promulgated these standards for the conduct of election recounts in Virginia, with these ballot examples for manual recounting.

On hourly rates

On, they are reporting that Hourly Billing Rates Continue to Rise, including discussion of one partner at the Venable firm who charges $1,000 per hour for some matters.

I don't know anything about Mr. Civiletti, but the several lawyers I've met from Venable earn their money; they're as stout a bunch as any I've come across.

RLUIPA show and tell

This cross beside the interstate must be 30 feet high. Posted by Picasa

I always wonder when I drive past it whether they had to apply for some kind of permit under the zoning ordinance, and if it had been denied, whether they would have had a claim under the Religious Land Use and Institutionalized Persons Act.

Watch what you ask for

Here are the press reports on the first big ruling in the Attorney General recount:

The AP - Court rejects Democrat's argument in contested AG's race
The Free Lance-Star - Ballots will not be rescanned
Richmond Times-Dispatch - McDonnell gets preliminary court victory
Roanoke Times - McDonnell wins panel decision on recount
Virginian Pilot - Panel's recount ruling goes McDonnell's way
Washington Post - Judges Exclude 26% of Ballots in Va. Recount

The issue was whether all of the "optical scan ballots" in the state would be rescanned. The panel ruled that only where the computer tapes were illegible or contested would the Court consider recounting of individual ballots in those jurisdictions. Optical scan ballots are but one of the several methods of balloting used in the Commonwealth.

The Court's ruling will have the effect of reducing the number of ballots that will be recounted by hand. The secretary of the State Board of Elections indicated that if the 500,000+ optical scan ballots were to be individually recounted, more than 130,000 of those would have to be recounted by hand, because "machines used in nine jurisdictions -- including Martinsville -- could not be reprogrammed to count only the votes in the attorney general's election." The Roanoke article explained: "If they could be reprogrammed, the machines could set aside for inspection any ballots in which there were write-in votes, no votes or more than one vote in the attorney general's race. Without reprogramming, recount officials would have to count each ballot by hand."

The Deeds campaign cited the undervote in Chesterfield County and Virginia Beach. I would not have thought that new votes found in Chesterfield or the Beach would be likely to decrease the margin favoring McDonnell.

The Deeds campaign based its arguments on the magnitude of the undervote. As described here, there are always fewer votes case for Attorney General than for Governor, and a spread of 5 points between the percentage of ballots recording a vote for governor and the percentage of ballots recording a vote for Attorney General is not uncommon, in the figures shown in Larry Sabato's Virginia Votes 2001, available for download here from the Center for Politics website. In other words, the existence of a 40,000 vote undervote is not surprising - the lack of such an undervote would be more surprising, if not unbelievable.

Also, I can't get out of my mind the conclusions from one commenter to this post on Rick Sincere's blog, where he concludes:

"If you examine the undervote rate -- that is, the number of people who went to the polls but didn't vote in a given race -- for the Lieutenant Governor and Attorney General you see that the average rate for optical scan systems was 2.8% for each race. The undervote rate using DRE machines, though, was 50% higher in each case: around 4.0 - 4.2%. A statistical analysis of varaince [sic] shows that the only significant factor to explain this increase in voter apathy is the technology used, NOT 'voter satisfaction' or even locality size."

The comment links to this site, with analysis of the Virginia vote, which suggests that that 99% of the voters who turned out cast a vote in the Governor's race, 97.16 % cast a vote in the AG's race, 97.01 cast a vote in the LG's race. The site has this summary of the undervote for AG, broken down by type of voting machine.

Wednesday, December 07, 2005

Rule 11 sanction for filing meritless recusal motions

In Givens v. O'Quinn, Chief Judge Jones imposed a sanction of $250 and a reprimand against a local lawyer for filing what he determined were meritless recusal motions.

In the opinion, the Court observes, with a degree of understatement, that "it is hard to imagine that any other attorney practicing before this court would believe it appropriate to file the present motions."

Tuesday, December 06, 2005

Living the dream in Abingdon

The Bristol paper reported today that the Town of Abingdon has won the 2006 American Dream Town Award.

Judge Kirksey from Bristol is on the McConnell-Deeds recount panel

From this Commonwealth Conservative post, I see this Washington Post article, which says among other things that the Virginia Supreme Court has appointed Judges Wilford Taylor Jr., of Hampton and Larry B. Kirksey of Bristol to join Judge Markow of Richmond on the panel that will decide the recount in the Attorney General's race.

Judge Kirksey's background is discussed here.

On more money for representing the poor in criminal cases

This free article from Virginia Lawyers Weekly says: "Statewide bar groups and Chief Justice Leroy Rountree Hassell Sr. are expected to lobby vigorously for more money for the representation of criminal defendants, and commission members see the session as a crucial one to make the system credible. Virginia court-appointed attorneys fees are the lowest in the country, and studies have shown that public defenders are underpaid and overworked as well."

I also read in VLW of 11/21/05 that Chief Justice Hassell will not be acting on the proposed family court system this year. That article noted that "Hassell had said initially that he hoped to have the General Assembly approve the concept of a family court in 2006, with funding and operation to begin in July 2007."

New standing order for assignment of cases in the W.D. Va.

I just noticed this new standing order, dealing with the assignment of cases in the W.D. Va., entered on November 28, 2005.

I think it leaves the mix in Abingdon and Big Stone Gap unchanged.

Sunday, December 04, 2005

Another odd engineer from Virginia Tech

The Roanoke paper reports here that Henry Morris, who was on the engineering faculty at Virginia Tech from 1957 to 1970, published in 1961 a book about creationism that is still influential today.

Mr. Morris told the paper that he enjoyed his time at Tech. The reason why the professors from other departments did not give him much grief was explained this way: "Faculty in biology regarded Morris and his anti-evolutionist views as almost comical, dismissing him as another odd engineer."

A murder mystery featuring gun rights?

This account describes the efforts of a long-time Culpeper lawyer to write a novel, on themes including the Second Amendment.

Virginia Business Magazine - Legal Elite 2005

The December 2005 issue of Virginia Business has this year's listings of the Legal Elite, and it includes this profile of John H. OBrion Jr., regarding his mediation practice. A while back, I did a little research project, contacting a bunch of people I know and even a few who didn't know me, to get a mediator in Richmond, and OBrion was the consensus choice. We went with him, and he was great.

On the decline of peremptory challenges

Marcia Oddi links here to this AP story which begins: "Judges in Michigan cannot use a person's race, sex, religion or nationality to select jurors under a new rule approved by the Michigan Supreme Court."

Saturday, December 03, 2005

On the timeliness of a federal employment discrimination case

In cases under the federal employment discrimination statutes that require filing with the EEOC (Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Americans with Disabilities Act), the claimant will eventually receive from the EEOC a right-to-sue letter, and then the claimant has ninety days after receipt of the right-to-sue letter to file in court. See 29 U.S.C. § 626(e), 42 U.S.C. § 2000e-5(f).

In Miller v. Bristol Compressors, Chief Judge Jones of the W.D. Va. found that the plaintiff filed sued on the 91st day, and granted the defendant's motion to dismiss.

The facts were these: (1) the EEOC mailed the right-to-sue on May 31, (2) the complaint alleged on its face that the right-to-sue was received "on or about June 3," (3) in a late-filed affidavit, the plaintiff said that he was on vacation when the letter arrived in his mailbox and first saw it on June 5 (a Sunday), (4) suit was filed electronically on September 2 and the filing fee was paid on September 6.

Chief Judge Jones ruled as follows: (1) a motion to dismiss may be the proper means of asserting the statute of limitations, where the untimeliness is shown on the face of the complaint (2) in applying the 90-day limitations period, the Fourth Circuit does not follow an "actual receipt" rule, because of the potential for abuse, (3) in determining the date of receipt, the Court can apply the presumption underlying Rule 6(e), that the time from mailing to receipt is three days, (4) the Court did not need to decide whether the filing date was September 6 (the Tuesday after Labor Day, when the filing fee was paid) as opposed to September 2 (the Friday before Labor Day, when the complaint was e-filed), (5) plaintiff's motion for extra time to file his response was denied, because no excusible neglect or no particular reason at all was shown; (6) even with the affidavit, the Court would find that the date of receipt was June 3 and not June 5, applying the three-day rule, and not the date when the plaintiff got back from vacation, (7) September 2, when suit was e-filed, was the 91st day after June 3.

On the application of the three-day presumption, there is some diversity of opinion among the other circuits. See Taylor v. Books A Million, Inc., 296 F.3d 376, 379 (5th Cir. 2002) ("When the date on which a right-to-sue letter was actually received is either unknown or disputed, courts have presumed various receipt dates ranging from three to seven days after the letter was mailed."); Hunter v. Stephenson Roofing, Inc., 790 F.2d 472, 475 (6th Cir. 1986) (deciding on five days, citing 20 CFR § 422.210(c), the five-day presumption for receipt of right-to-sue notices in Social Security cases). See also Rao v. Baker, 898 F.2d 191, 195-96 (D.C. Cir. 1990) (explaining EEOC interprets "receipt ... of final decision" to include "a rebuttable presumption that in all cases in which evidence of the actual date of receipt is lacking, the final agency decision will be deemed to have been received [five] days following the date of decision") (citing 44 Fed. Reg. 34,494 (1979)).

The Fourth Circuit, in unpublished opinions, has recognized the three day presumption. See Nguyen v. Inova Alexandria Hosp., 1999 WL 556446, *3 (4th Cir.) ("If the date is unknown, however, it is presumed that service by regular mail is received within three days pursuant to Rule 6(e) of the Federal Rules."); Dixon v. Digital Equipment Corp., 1992 WL 245867, *1(4th Cir.) ("Rule 6(e) only provides a presumption regarding when notice was received. . . . Title VII claimants may only claim this presumption if the date of receipt of the right to sue letter is disputed."); Ish v. Arlington County, 1990 WL 180127, *1 (4th Cir.) ("We adopt the reconciliation of these positions suggested in Griffin v. Prince William Hosp. Corp., 716 F. Supp. 919, 921 n.7 (E.D. Va. 1989), which held that although Rule 6(e) does not automatically provide a three-day extension to § 2000e-5(f)(1), it does provide a presumption of receipt three days after mailing if the parties dispute the date of receipt.").

Next time, call Domino's

In Coffee v. Morris, the facts were these: the plaintiff mom was riding as passenger, her son was driving, she had two pizzas in her lap, the car gets pulled over for speeding as they were almost home, the son stops in front of their house, the officer tells Mom to stay in the car, Mom gets out, the officer grabs her, Mom sues claiming that her constitutional rights were violated.

On summary judgment, Judge Conrad found that the rights of the passenger were not clearly established, and granted the motion for the defendant based on qualified immunity.

On getting your case transferred from Roanoke to Big Stone Gap

In Simmons v. Johnson, Judge Conrad explained why a claim related to an incident at the Wallens Ridge facility in Wise County should be heard in the Big Stone Gap division rather than the Roanoke division in which it was filed.

West Virginia Supreme Court upholds constitutionality of coal severance tax

In U.S. Steel Mining Company, LLC v. Helton, the West Virginia Supreme Court in a split decision affirmed the constitutionality of West Virginia's coal severance tax. The AP has this article and the Charleston Gazette has this article about the decision.

Here and here are earlier posts on this topic.

Thursday, December 01, 2005

Another Virginia bigamy case

The Harrisonburg paper has this report on a bigamy prosecution.

The article quotes the Commonwealth's Attorney:

"It’s a big deal when you get married," Mitchell said. "You can’t arbitrarily end that marriage by getting married to someone else."

The article did not say whether the defendant would claim that the bigamy statute was unconstitutional, on the theory that Lawrence v. Texas has declared all laws about sexual morality to be irrational and therefore invalid. I'm sure that every one of the judges up there would be delighted to entertain the issue.

Local attorney arrested on allegations that he e-mailed his client with instructions to lie in court

Someone sent me this link, which says in part:

"The Tennessee Bureau of Investigation is now investigating a Tri-Cities attorney for perjury, after he is accused of advising one of his clients to lie under oath. . . .

The arrest came after his client, a defendant in a DUI case, provided the judge with two emails from Pratt before her trial started today."

Is $4,000 too much in fees for a 4-page brief?

In this post, Ernie talks about Judge Posner and his opinion in Budget Rent-a-car System, Inc. v. Consolidated Equity LLC.

Judge Posner wrote:

"We ordered that sanctions be imposed on Consolidated Equity for this frivolous appeal, Fed. R. App. P. 38, and Budget has submitted a statement of its fees and costs. They are exorbitant. Because the appeal was dismissed before briefing, Budget’s only appellate submission was a four-page jurisdictional memo that cites five cases. Budget claims that the memo cost $4,626.50 to produce (3.3 partner hours at $425 per hour and 10.4 associate hours at $310 per hour); for so modest a product, 13.7 hours of high-paid professionals’ time are too many."

More perilous, the lawyers for Budget put in $165 as costs, which was the fee for one of its lawyers to be admitted to the bar of the appeals court, which caused Posner to add, "Budget’s mischaracterization further undermines the credibility of its submissions."

Ernie's post links to discussion among some lawyers that appeals court judges don't have a very good idea about what things cost.

Wednesday, November 30, 2005

Another case where I could be either counsel or expert witness

Reason links to this report in the Atlanta paper about the next big thing - liability claims against soda makers.

I thought I was an expert on Big Macs, but I have even more experience drinking Coca-Cola. My opinion? The cola marketing has no effect on anyone, so I suggest that you have a Coke and a smile.

After-acquired evidence as a defense to the merits in employment contract cases

According to this post from one of the Branham & Day blogs, the Tennessee Supreme Court held in Teter v. Republic Parking System, Inc., that after-acquired evidence can be presented as a defense to the merits of a claim for breach of an employment contract, but the burden of proof is on the employer.

What this means is that where the employee can only be fired "for cause," even if the cause the employer had in mind is insufficient or can't be proven, the employer can take discovery to find some other cause that it didn't even know about at the time of the dismissal.

I have argued for something similar under Virginia law, citing some old cases. At one hearing, the other lawyer argued, oh, those cases are old. The judge asked whether counsel believed that the age of enlightenment had reached the Supreme Court of Virginia only some time after those cases were decided.

On the writers and the Baseball Hall of Fame

This column from the Norfolk paper explains that the ballot for this the last year when the baseball writers could vote in Pete Rose to the Baseball Hall of Fame does not have his name on it, and so he's left with the veterans if he is to ever get into the Hall.

Some of my friends are passionate about Pete, I am not. Years ago, there was a Pizzeria Uno on King Street in Old Town Alexandria, and upstairs they had a life-sized picture of Pete from the 1975 World Series, with one arm slung around Fred Lynn of the Red Sox, happy as a clam, and with the other hand giving the photographer the finger. That sums him up for me: great baseball man, poor impulse control.

Among those who actually are on the ballot, with not much chance of success, is Dave Parker, who would get my vote just for his throw from right field to home plate during the 1979 All-Star game in the Seattle Kingdome that was shown every week during the closing credits of Mel Allen's This Week in Baseball, with that great violin and horn music in the background (a six second snippet of which can be heard here, where they are selling it for downloading to cellphones). He did it in slow motion, a strike from 300 feet, every Saturday.

You're doing a great job, Brownie?

I never knew or had forgotten until I read this Post article on the McConnell-Deeds race that the head of the State Board of Elections in Virginia is named Michael Brown.

On my youthful appearance

I am 41, and have greying hair, but people think I am younger.

A while back, someone called me to help them out with a small project, because they had been told by their regular lawyer that I was "the expert."

When we met, the client contact was surprised by my appearance. You're not at all what I expected, the contact said, I thought you were about 60.

Perhaps they were expecting "the expert" to look more like this.

On the efficacy of federal mandatory minimum sentences

The Roanoke Times reports here: "A Roanoke County man who ordered child pornography through the mail was sentenced Tuesday to 15 years in prison, the mandatory minimum for a previously convicted child molester. But U.S. District Court Judge James Turk told prosecutors that he would have levied a lighter sentence if he could, because he was unconvinced that Dennis Marco Mills, 48, had molested more children since his last conviction."

An expert for the government testified "that watching child pornography is the first rung on a ladder to molesting again." The U.S. Attorney argued "that someone would get a life sentence . . . and that the prosecution hoped it was Mills, a three-time convicted sex offender, rather than some future victim of his."

This is an interesting case, as the issues raised go the heart of what is sentencing all about. To what extent is the goal of sentencing to punish the accused for what he has done, as opposed to preventing him from doing what he might do? Also, the case is interesting from the point of view of mandatory minimum sentences, fixed by the legislature. From Judge Turk's comments, it appears that reasonable minds could disagree widely as to what sentence is appropriate in this case. Is society better served when the legislature makes a blanket decision about the minimum jail time for such cases, or should someone in the position of the judge be able to fashion an appropriate sentence based on the particular evidence in each individual case?

Tuesday, November 29, 2005

Warner grants clemency to Lovitt

The AP is reporting that earlier this afternoon, Governor Warner granted clemency in the case of Robin Lovitt, who was scheduled to be executed this week for a murder committed in 1998.

This is the case where the court clerk is accused of throwing out part of the evidence which could have exonerated the defendant (or not) if it was available for modern DNA testing today.

Judge Conrad substitutes U.S. as sole defendant in defamation case against Rep. Rahal

In Chapman v. Rahall, Judge Conrad of the W.D. Va. ruled that the United States was the sole proper defendant for the claims against West Virginia Congressman Nick Rahall for stuff he said on TV about the plaintiff, under the Federal Tort Claims Act as amended by the Westfall Act.

This outcome likely does in the plaintiff, either because of failure to exhaust administrative remedies for an FTCA claim or because of the intentional act exclusions to the liability of the United States under the FTCA.

Interesting that there was no discussion of the constitutional immunity of congressman under the U.S. Constitution's speech and debate clause. Years ago, the Supreme Court held in Hutchinson v. Proxmire, 443 U.S. 111 (1979), that the immunity under the Speech and Debate clause did not extend to statements made by Senator Proxmire in his press releases and newsletters.

Judge Urbanski on attorneys' fees and court costs in a Lanham Act case

In Southprint, Inc. v. H3, Inc., Magistrate Judge Urbanski of the W.D. Va. denied the winner's request for attorneys' fees in a Lanham Act case and also denied about half of the plaintiff's claim for court costs under Rule 54.

In particular, the expedited process server fee was denied, and costs were allowed only for those depositions that "were submitted and necessary in rendering a decision on the motion for summary judgment." Judge Urbanski also booted the claims for court reporter extras like condensed transcripts, transcripts on disc, and postage or shipping costs. Also, the judge booted the claim for a transcript of the court hearing on the motion for summary judgment. The court also allowed a fraction of the plaintiff's copying costs, which was a new one on me. Copy costs? Anyhow, the judge is right on all counts, so far as I know.

SW Virginia law list of books

Here is an Amazon list mostly of books I've read or written about on this blog, about Virginia trials or cases or lawyers. I'm sure that there are a few more such books out there, send me a line if I've missed some of the more obvious titles.

Also, check out Chad's post re: readings on Virginia politics.

Who says removal from state court in Virginia is a good thing

According to this Bacon's post, the Chamber of Commerce says that Virginia has the No. 4 best legal system in the country, trailing only those jurisprudential Edens situated in Delaware, Nebraska, and North Dakota.

Double reversal in the Virginia removal case

In the Roche v. Lincoln Property case, the plaintiffs brought their products liability case in state court in Virginia, the defendants removed the case to the E.D. Va., the trial court judge slammed the plaintiffs' case by booting their expert testimony under Daubert and granting summary judgment on the merits for lack of evidence, the plaintiffs appealed to the Fourth Circuit on issues related to the removal, the Fourth Circuit reversed the judgment for the defendant on jurisdictional grounds, and finally, in today's unanimous opinion, the Supreme Court reversed the decision by the Fourth Circuit, concluding that the propriety of removal was to be determined based on the actual, rather than the potential, defendants to the state court case.

One interesting footnote from the case says: "The Roches state that they preferred to litigate in state court for two principal reasons: Virginia does not permit summary judgment based on affidavits or deposition testimony, and Virginia has not adopted the rule of Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), to assess expert evidence." Hey, no kidding, since they were subsequently zapped in federal court by Daubert and summary judgment practice.

Monday, November 28, 2005

Odds of winning a federal appeal - not great

Here are some statistics that say federal court appellants generally lose.

Then again, the reversal rates in cases where the parties are represented by counsel in a civil case on legal issues are surely greater.

How the vote count has changed since election night

The Richmond paper says here: "Since the day-after-election tally, Gov.-elect Timothy M. Kaine has picked up about 3,000 votes, while Republican Jerry L. Kilgore gained about 2,500 votes. Independent H. Russell Potts Jr. lost 84 votes.

In the race for lieutenant governor, Lt. Gov.-elect Bill Bolling, a Republican from Hanover County, gained about 3,200 votes, while Democrat Leslie L. Byrne gained 3,800.

In the attorney general's race, McDonnell gained 1,600 votes, while Deeds picked up 3,200."

Sunday, November 27, 2005

On Katrina refugees at Virginia

This story about college students from Louisiana schools who were admitted for a semester elsewhere while their schools were closed begins with the tale of a young woman from Tulane would like to stay on next semester at the University of Virginia (but evidently can't).

New judge in Wise County

Brian Patton says here the Coalfield Progress is reporting on its front page (but not online) that the 30th Circuit judges have appointed Joe Carico as the next general district court judge, to serve until the General Assembly selects a replacement for Judge Fulton, who took a job in Richmond. Carico was the Commonwealth's attorney in Wise County from December 1999 until March 2003 when he became the Chief Deputy under Attorney General Jerry Kilgore.

Describing Carico as a candidate for Commonwealth's Attorney in 1999, the Kingsport paper wrote:

"Carico, 29, is an associate with Norton law firm Wolfe and Farmer and a graduate of Samford University's Cumberland School of Law. A graduate of the University of Virginia's College at Wise, Carico also served four years in the Army as an artillery man before attending law school and clerking for Buchanan County Circuit Judge Bob Williams and with the Alabama Supreme Court."

The Becker-Posner Blog's discouraging words on the bird flu

The Posner and Becker posts on the avian flu are not full of good cheer.

Unrelated to this, Stephen Choi's oft-cited empirical survey of federal judges put Judge Posner at the top, and Judge Samuel Alito near the top at No. 16. The order of merit among the Fourth Circuit judges 65 and under as of 2003 was Wilkinson (No. 3), Niemeyer (No. 4), Luttig (No. 10), Motz (No. 32), Wilkins (No. 37), Williams (No. 49), and Michael (No. 66), if that tells you anything about Choi's "tournament."

On Appalachian food

On this article with an interview of the author of Appalachian Home Cooking: History, Culture, And Recipes, one of the items mentioned is "soup beans and corn bread with fresh onions on top."

My wife, being from Northern Virginia, once reported to me her discovery that my parents sometimes eat such a dish for lunch.

The Wagner family goes to New York

Earlier, the NY Times had this article on the cultural hurdles to the NY Mets' efforts to lure Southwest Virginia native and hard-throwing free agent relief pitcher Billy Wagner to come and pitch in New York.

The article says in part:

"This morning, Billy Wagner and his wife, Sarah, will leave their three children and herd of alpacas at their 60-acre spread near the Blue Ridge Mountains in central Virginia for 36 potentially life-altering hours in and around the biggest, noisiest and perhaps most intimidating city in the country. . . .

Of most concern is his comfort in the area, because his family plans to move with him. Philadelphia might have a slight edge in the Wagner sweepstakes even if the Phillies cannot match the Mets' money. The Mets sent a DVD to Wagner about greater New York, but now, in person, they will have their best opportunity to sell the big city to a player who does not have big-city roots. . . .

Wagner, who spent parts of nine seasons in Houston and the last two in Philadelphia, is no stranger to bright lights. But he is a professed country boy who grew up in a town of 360 nestled in the Appalachian Mountains of southwestern Virginia. The Mets understand that it is imperative to demystify the stereotype that life here begins and ends in Times Square. . . ."

Buy a condo to support your college football habit

This article from the Baltimore Sun begins with the tale of a couple who bought a condo in Blacksburg just to use for Hokie football weekends.

On relations between landowners and gas companies

The AP has this story that says some Appalachian landowners don't like the gas companies who are drilling like crazy these days.

On diversity jurisdiction and national banks

SCOTUSBlog has this post on the national bank / diversity jurisdiction case, on appeal from the Fourth Circuit, to be argued tomorrow in the U.S. Supreme Court. The issue is "whether, for purposes of diversity jurisdiction, a national bank is considered a citizen of every state in which it maintains branches, even when its main office is in a different state." The Fourth Circuit said yes, Wachovia is arguing no, and is supported by the Solicitor General's office.

Another free PDF converter

Via PDF for Lawyers, here is another free PDF converter, supposedly without some of the more annoying aspects of the other freebies.

Why shout Hoos and O's during the national anthem

Here from Wikipedia is an explanation of the Hoos! and O's! heard shouted during the National Anthem.

I don't mind the shouting, so long as they sing the rest of it, with gusto.

Friday, November 25, 2005

$10,000+ for a dog translator

Via BoingBoing, it says here that the Israelis have got a gadget that will interpret the barks of your dog.

Our dog figured out long ago that we are fairly simple-minded, and so most of her barking is pretty straightforward ("Yes!" if the we are taking her out or "No!" if we are going out without her).

Put your corporate name on the Governor's Palace in Colonial Williamsburg?

The Williamsburg paper reports here that naming rights (or some form of sponsorship) for the Governor's Palace in Colonial Williamsburg can be yours for only $15 million.

On the return of United Coal

This AP story describes the return of United Coal Co., a subsidiary of Bristol's The United Co., into the coal business in West Virginia.

Increased ethics complaints in Tennessee

The Tennesseean reports that the number of complaints against Tennessee lawyers went up by 6 per cent in 2004.

No news to Biscuit and Lulu

It has been determined that Richmond's a great place to be a dog.

Biscuit and Lulu are the only dogs I know in the greater Richmond area.

Flunking the burglar test

The Richlands paper reports here that a Tazewell County man faces criminal charges after he talked two people into helping him see how fast he could react to a burglar entering his home, and then shot the woman who played the role of the burglar.

Thursday, November 24, 2005

The return of mountaintop mining in West Virginia

On Wednesday, in Ohio Valley Environmental Coalition v. Bulen, the Fourth Circuit in an opinion by Judge Luttig, joined by Judge Niemeyer and District Judge Conrad, overruled the decision by Judge Goodwin of the S.D. W.Va. and concluded that the Army Corps of Engineers had not violated the Clean Water Act in its approval of mountaintop mining permits in West Virginia. The appeals panel, unlike the District Court, concluded that the issue did not involve the misapplication of an unambiguous issue, but instead was one to which the administrative agency, in this case the Corps of Engineers, was entitled to deference under the administrative law principles set forth in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

The AP's Larry O'Dell had this report about the case.

Wednesday, November 23, 2005

Gobbler meets Emeril

Surely, the last person the Hokie bird wants to be with this week is the guy who deep fries turkeys on TV. Posted by Picasa

JD signs off

The Jaded JD in Richmond says:Farewell, adieu, auf Wiedersehen, goodbye.

On Southern manners

This story on whether Southerners are more polite begins at Mrs. Wilkes in Savannah, where I ate last week.

Bad plan

It says here that a Virginia lawyer made a prank phone call to a local judge and wound up getting convicted of obscene phone harassment, whatever that means.

First step to death penalty moratorium in Virginia?

The Roanoke paper reports here that Governor Warner is talking about allowing Dr. Blake from the O.J. case to retest the DNA from the Roger Keith Coleman case.

I told somebody a couple of days ago that this testing will soon be done, and someone will interpret the results to say that Coleman was innocent, and the Kaine administration will use that interpretation as the basis upon which to declare a moratorium on the death penalty in Virginia until the date when the criminal justice system is fixed to the point where innocent people will never be convicted; i.e., forever.

Here and here and here are my last three posts about Dr. Blake and the Coleman case.

Tuesday, November 22, 2005

Ask Waldo

Waldo says: "You’ve just got to love a governor who has his inaugural lunch at Pierce’s Pitt Bar-B-Que."

I like to eat the pig at Pierce's, got to give them the nod on that one.

The Big Study on the Election

I read here that this from some people at Virginia Tech is the Big Study on the 2005 Virginia election that everyone is talking about.

It says that SW Virginia is in the "Shenandoah" region, which I guess is a better name than "other" after the other three of four regions (Richmond, NoVa, and Tidewater) were staked out.

Almost bowl eligible

Based on this bit of news, the writing team has now won 5 and one-third of Chad's Caption Contests.

Monday, November 21, 2005

On the increased number of women judges in Virginia

Here the Norfolk paper has a report on increases in the number of Virginia women who are judges, focusing on the Norfolk area judges.

Jerry Falwell hoping for Protestant Knute Rockne

Explaining why he fired the football coach at Liberty University, Jerry Falwell here: "I don't have much time to get the football program in the Top 20."

On the college facebook

The CD has this article on privacy issues related to the University's online facebook.

They had a printed facebook when I was there. One fellow told me that from the picture published therein, it appeared to him that I was Chinese.

What happened to Ms. Kelo

The NY Times has this article with the latest on Ms. Kelo and New London, which prompted this Althouse post and this Reason post.

The gist being that it is no small irony that the project at issue in the Kelo case is not going forward because it was a bad idea from the start.

Sunday, November 20, 2005

Is Virginia swimming against the tide?

I had to laugh when I read the USATODAY article titled Outlook good for tax cuts by states.

For better and/or worse, the outlook is bad for tax cuts by Virginia.

On Hitler in Virginia

Via this Tsuzu post, the Nation has this article called Hitler in Virginia on Scott Howell, the man behind the ads for the Kilgore campaign.

Shaula says that Kaine won in spite of his inadequate preparations for the onslaught of Howell advertisements for Kilgore.

Sun who? Steve Emmert goes Chinese

Here Steve Emmert reveals the ancient Chinese secrets to the art of successful appellate advocacy in the Commonwealth and elsewhere.


Indeed, we did the tourist scene, eating at SoHo South Cafe, Mrs. Wilkes, Bistro Savannah, Firefly Cafe, Skyler's (voted in here for best crabcakes), Il Pasticcio, and 45 South.

45 South was the best (and most expensive), but Mrs. Wilkes (minus the rice and grits, plus a couple of different colors of Jello salad) was more or less the way we ate every day at Grandma Conrad's house.

Virginia land use roundup

The Daily Progress opined here that an amendment to the federal constitution might be in order to limit the Supreme Court's ruling in Kelo.

Tenants in a downtown building in Norfolk protested the leanings of the federal government toward taking their building for the expansion of the federal courthouse, according to this report in the Norfolk paper.

The Richmond paper reported here and the Roanoke paper reported here that the Virginia Housing Commission has endorsed a proposed amendment to Virginia law to limit the authority of government to take private property for purposes of economic development purposes. The same Roanoke article and this article from the Richmond paper discuss the Claytor case, a long-running inverse condemnation claim against housing authority in Roanoke.

One of the Connection papers reported here that local officials told their General Assembly representatives that they do not want any change to Virginia's eminent domain laws, but also said they don't like what Verizon is doing to try to get around the municipal franchise laws.

Two stooges

This Southern Appeal post identifies a couple of U.S. Senators who worked into a conference report on bill they were working on that two buildings would be named after themselves.

On improving the standing of the University of South Carolina law school

Via SC Appellate Blog, I read this interesting commentary by a law professor at South Carolina about how to improve the standing of USC Law.

Unrelated to this, we stopped in Columbia on the way home yesterday and ate the mustard BBQ at Maurice's (the one by their headquarters, I think), just in time to see the first of the many touchdowns scored by the Hokies on Virginia.

How West Virginia and Kentucky put Virginia to shame

State appeals court briefs are available online in West Virginia and in Kentucky but not in Virginia.

This fact ought to be a source of embarrassment to some people in Richmond and elsewhere in the Commonwealth.

Some things make no sense

Here one of the C and F guys wrote, re: the late federal appeals court judge Richard Arnold:

"I took Judge Richard S. Arnold's death rather badly, even though I never met the man; and indeed, I didn't even know him by proxy. The death of someone like him makes me bitter. With so many scoundrels living, why does someone like him have to die?"

I thought something similar this morning when I got to reading last week's Bristol papers and read (here and here and here) of the death of the young McGlothlin in Iraq.

That frightening Virginia Halloween oral argument

Here is the transcript of the oral argument in the Virginia college bookstore case.

The light bulb blew out on page 37.

Fourth Circuit and the ADA

This post and this Brian Peterson post describe the Fourth Circuit's decision in Taylor v. Federal Express Corp., wherein Judge Motz, joined by Judges Traxler and Shedd, affirmed the district court's ruling that the plaintiff was not disabled within the meaning of the Americans with Disabilities Act.

Tuesday, November 15, 2005

The bang that made Homer Hickam famous

AFP reports here that at Virginia Tech, NASA scientist and author Homer Hickam "is not known for his personal and professional exploits as much as he is for his work in the early 1960s on the cannon that has been used in the years since to signal when the home football team puts points on the scoreboard."

Ooh, that '98 game

AFP has this fun article with a few short tales from the radio men for Virginia Tech and Virginia with recollections of Virginia-Virginia Tech football games.

Sunday, November 13, 2005

We're No. 7 in deer-car accidents

According to this article in the Lynchburg paper, Virginia is ranked seventh in the nation by State Farm in the number of auto accidents involving deer.

RLUIPA case in Portsmouth?

The Norfolk paper reports here on a case before Judge Doumar of the E.D. Va. under the Religious Land Use and Institutionalized Person Act, having to do with the city's decision to prevent a 100 year-old church building from reopening as a church.

The article says the judge scoffed at the city's arguments that the case involved purely zoning issues, and suggested that the parties ought to settle. Judges often say the parties should settle, but sometimes what that means is that the judge thinks one side or the other has got nothing.

One judge's views on how to improve the Virginia court system

In this commentary in the Richmond paper, Judge Robert Humphrey of the Virginia Court of Appeals expresses some ideas about how to improve the court system in Virginia.

The only idea in there that I can say I support wholeheartedly is that mediation should be cheaper.

Virginia now one of ACC's too many bowl-eligible teams

With the win over Georgia Tech, Virginia joins six other ACC football teams as bowl eligible (Miami, Virginia Tech, Florida State, Boston College, Georgia Tech, Clemson), and Maryland might soon join the list.

The ACC has only six bowl tie-ins this year, as reported here in a Washington Post which says one of the other possible destinations for an ACC team is the Liberty Bowl in Memphis.

American Heritage takes on Nat Turner

This interesting article in American Heritage looks at the confused history of Nat Turner, who led a slave rebellion in Southampton County, Virginia, in 1831.

On MADD's monitoring of drunk driving cases at the Beach

The Norfolk paper has this editorial that says Mothers Against Drunk Driving should cut a Virginia Beach judge some slack, even thought she made some mistakes in the non-public manner in which she handled a particular drunk driving case.

The Millionaire

I love this story of the guy who won a million dollars throwing a football at the Clemson game.

Saturday, November 12, 2005

Where we are going next week

Here Posted by Picasa is a clue.

Virginia farmers get llamas to protect their grazing animals

Here the Roanoke paper explains why some farmers are replacing dogs with llamas to combat coyotes in the pastures of Southwest Virginia.

The Slashdotters take on electronic voting machines and the need for a paper trail

This mess of commentary at Slashdot about how the legislature in Wisconsin has approved some paper trail requirement seems to say, more or less, that a paper trail is no panacea, and mostly worthless if the voter does not get to see the paper generated by his or her vote.

Also, it says that the vote machine companies are going to get rich selling ink for all those printers.

Paper filing of notice of dismissal beats electronically filed answer

In the very interesting case of Powell Construction Company, Inc. v. U.S. Crane and Rigging, Inc., the defendant claimed that the plaintiff's notice of voluntary dismissal under Rule 41, filed on paper, was ineffective, because the W.D. Va. requires electronic filing, and that because the defendant had subsequently e-filed an answer, voluntary dismissal could not be granted without leave of court.

Judge Wilson ruled that because of technical difficulties with the case, which had been transferred from the E.D. Tenn., the paper filing was permitted, and was in substantial compliance with the Federal Rules and the local standing order on electronic filing, and therefore it would be given effect.

On ballot fall-off in Virginia statewide office elections

Not everyone who voted on Tuesday cast a vote for every office. This kind of undervoting is described in Professor Sabato's reports on Virginia voting as "ballot fall-off." In his 2001 report (which can be downloaded here from the Center for Politics website), he had this summary of ballot fall-off in Virginia elections, stated as the percentage of all voters who voted in a particular race.

1977 - Governor, 98.5; Lt. Gov., 94.7; AG, 90.8
1981 - Governor, 98.8; Lt. Gov., 94.2; AG, 93.2
1985 - Governor, 97.5; Lt. Gov., 95.9; AG, 96.3
1989 - Governor, 98.2; Lt. Gov., 94.8; AG, 95.2
1993 - Governor, 98.7; Lt. Gov., 95.7; AG, 94.0
1997 - Governor, 98.4; Lt. Gov., 94.9; AG, 94.0
2001 - Governor, 99.0; Lt. Gov., 96.5; AG, 94.7

From this morning's numbers, it appears that in 2005 there were roughly 40,000 more votes cast in the Governor's race than the Attorney General's race, and roughly 4,000 more votes cast in the Attorney General's race than in the Lieutenant Governor's race.

McDonnell over Deeds by 513 as of 9:17 AM Saturday, November 12

The website figures keep changing, with the latest being 970,602 for McDonnell and 970,089 for Deeds.

William and Mary law faculty on the commission studying the future of Virginia courts

This article says Jayne Barnard, John Donaldson, Judge Walter Felton, and Fred Lederer, past and present law professors at William & Mary, are members of the study group assembled by Chief Justice Hassell to ponder the future of Virginia courts over the next 10-15 years.

I'd have to say that these four are among my favorites from my law school days.

Also, with Lederer in the group, there is a chance the Commission will make decent use of technology. In the article, Professor Barnard asks the question, "Will judges need blogs?" The Commission needs a blog, if you ask me. And some good cigars, for Professor Donaldson.

Friday, November 11, 2005

McDonnell over Deeds by 620 votes as of 6:02 PM Friday, November 11

On the website, the count at this hour is 970,583-969,963.

Is it normal for this many votes to change just through the corrections by the electoral boards?

I was (I think) the only spectator at the Bristol canvas, where there were no changes on the Attorney General vote count for the four precincts, so far as I could tell.

A Tennessee judge cannot run off his opponent

The ABA ejournal reports here that the Tennessee Court of Appeals informed "a state circuit court judge he cannot bar an attorney from practicing in his judicial district just because the attorney announced he is going to run against the judge in the next election."

What happened to the bushes in the end zone at Scott Stadium

It says here in the Charlottesville paper:

"The Department of Athletics already has removed a fence and hedge where students were crushed Oct. 15 during a mass dash to the field following the 26-21 win over Florida State University."

Don't usually get the Chief Justice

Via Althouse, it says here that Chief Justice John Roberts made a prior commitment to judge a moot court competition at Wake Forest and he's still going to be there.

Mid-day Friday - McDonnell leads Deeds by 904 votes

Or so says the SBE website.

Thursday, November 10, 2005

McDonnell over Deeds by only 947 votes at 7:07 PM November 10

Waldo has this post about the shrinking margin as reported on the State Board of Elections website.

On chads in Virginia

The prospect of a recount in the race between McDonnell and Deeds brings to mind Bush v. Gore.

In connection with Bush v. Gore, the Commonwealth filed an amicus brief, by Attorney General Mark Earley and his Chief Deputy Randolph Beales and Solicitor William Hurd, with this interesting snippet about the 1989 recount in Virginia:

"In 1989, there was a statewide recount in the Virginia gubernatorial race. Based on official returns, the Democrat, L. Douglas Wilder, appeared to defeat the Republican, J. Marshall Coleman, by a margin of 6,854 out of 1,787,424 votes cast, a margin of less than one half of one percent. Coleman then petitioned for a recount, which Virginia law provides must be conducted under the auspices of a special three-judge court. Va. Code § 24.2-801 (formerly § 24.1-249). It is most instructive that, although the recount procedures were vigorously contested, the counting of indented chads was recognized by all sides as being out of bounds. Instead, invoking the bipartisan precedent of the 1985 McCloskey/McIntyre Congressional contest, Coleman sought to count as votes only those punch card ballots where two or more corners had been detached. Coleman v. Wilder, Cir. Ct. City of Richmond (No. N 8541-1) (1989), Petitioner's Memorandum Regarding Recount Procedures, at 25-26. Wilder was unwilling to go even that far, stating:

A physical recount of the punch card ballots used in this election would be fraught with tabulation errors. The ballots are designed with the specific intent to be read and counted by machine tabulators, and, as a consequence, they are not easily read by the human eye . -- [T]he counting of votes by such machines is inherently more reliable than a manual count. Displacing the machine generated results with the results of a hand counting of punch cards would be a giant step away from achieving an accurate vote count.

Id., Respondent's Memorandum Concerning Recount Procedures, at 25. The recount court resolved the issue by denying any manual recount of punch card ballots, but allowing them to be re-read by re-programmed and re-tested computers. Id., Order Fixing Procedures, at 6, 8."

Wednesday, November 09, 2005

President Bush goes where the General Assembly feared to tread

This story describes the ceremony at which Muhammad Ali, among others, received the Presidential Medal of Freedom.

In the 2004 session of the Virginia General Assembly, Republican Delegate Mark Cole vetoed a commendation for Ali, which made me irate at the time.

Went bust like McClellan on the fields of Northern Virginia

This analysis by somebody at Redstate concludes: "had Jerry Kilgore even come close to matching Bush's anemic performance in Northern Virginia last year, he would now be Governor-elect."

Check it out, as there are some fun maps.

More on the ghost precincts

In this article from the Norfolk paper, Bob McDonnell "said three precincts listed as having not reported are 'ghost precincts' that have no voters living in them."

That's a fun concept, ghost precincts.

What happens when two Charleston WV lawyers get together at the WVU law school before a football game

Here it says: "A Charleston lawyer is accused of throwing a can of beer at another Charleston lawyer on the West Virginia University law school steps just before last Wednesday's football game, according to a criminal complaint in Monongalia Magistrate Court."

No wonder they've not been counted

Waldo says here that the three precincts not showing up with votes for the McDonnell-Deeds Virginia attorney general race do not actually exist.

In retaliation, voters from those three precincts called for a boycott of Waldo's online stuff.

(That was a joke.)

Best name on a write-in ballot I've heard today

I watched the City of Bristol electoral board canvas the vote, and the funniest thing I heard was that somebody wrote in "Frank Beamer" for the seat in the House of Delegates held by Joe Johnson.

I wonder if Roy Jessee got any votes this year over in Scott County, or elsewhere.