Saturday, January 08, 2005

Verizon gets cable franchises in Virginia

It says here that Verizon has applied for franchises in three Northern Virginia localities to provide video services.

Verizon is the incumbent local exchange carrier throughout most of Virginia (but not here in Washington County).

Legal malpractice insurer wins on failure to disclose

Insurance Defense Blog has this post with a link to a federal court decision applying Virginia law in which the Court held that the insurer was entitled to rescind the contract of legal malpractice insurance because the applicant had failed to disclose a claim, which had been threatened in writing. The opinion is here.

Wise County death case makes the Washington Post

The Washington Post had this lengthy account ("Mining Town Rises in Anger," 1/6/05) of the local reaction to the death of the child killed by the boulder from the strip mine in Wise County.

On the proposed Virginia law for reporting of miscarriages

As in the Gibson column linked earlier, this TalkLeft post mocks the proposed Virginia statute that would criminalize a woman's failure to report her miscarriage, and links to this ACS post and this post from the Virginia Young Democrats' site. The text of the bill, HB 1677, is here.

On the same topic is this Virginia Progressive post, which links to the Daily Kos version of this discussion.

The bill says, in pertinent part:

"When a fetal death occurs without medical attendance, it shall be the woman's responsibility to report the death to the law-enforcement agency in the jurisdiction of which the delivery occurs within 12 hours after the delivery. A violation of this section shall be punishable as a Class 1 misdemeanor."

This proposal is all over the blogosphere - many posts can be found here, and some are quoting a mass e-mail from Del. Cosgrove, the sponsor of the bill. UPDATE: This post includes Del. Cosgrove's response to the young Democrats, indicating he will try to modify the bill.

Supposedly, this bill is aimed in some way at cases like this murder case from Norfolk that was recently heard before the Virginia Court of Appeals, in which there was some difficulty in proving whether the victim was born alive or dead. I don't know how a reporting requirement would have changed the behavior of the defendant in this case, who was convicted of first degree murder (and her conviction was based primarily on her own statements).

Lynchburg city courthouse restored

This picture appeared in the Lynchburg paper, which reported this week on the restoration of the cupola above the old city courthouse. Posted by Hello

The News-Advance story is here.

On brochure bills

Bob Gibson of the Charlottesville paper has this column about bills that are proposed as fodder for future campaign brochures.

The piece includes a quote from AG candidate Creigh Deeds, who said: "There are some legislators who seem to be obsessed with reproduction."

Gibson concludes: "Sometimes the General Assembly can be a pair of fun houses that offer the advantage of being divorced from reality."

General Assembly to take on spyware

The Norfolk paper reports here ("Lawmakers to take on latest high-tech hazard: spyware," 1/8/05) that the General Assembly will once again take on the world, criminalizing spyware.

What's on those trains?

The Norfolk paper reports here ("Railroad could face flood of lawsuits after S.C. wreck," 1/8/05) on liability issues facing the Norfolk Southern railroad following the recent chemical spill in South Carolina.

The Roanoke paper reports here ("S.W. Va. crews prepared for event of similar scope," 1/8/05) on efforts by Southwest Virginia emergency personnel to be prepared for like events, and here ("How do we know if danger is moving through Roanoke?," 1/8/05) on the state of local knowledge about what chemicals are contained in passing trains.

Saltville allows in-town goose hunt

The Richmond paper reports here ("Saltville allows goose hunting," 1/8/05) that Saltville, VA ("the Salt Capital of the Confederacy") will become "the first town in the western part of the state to allow goose-hunting within town limits."

The article says the Canada gees are "drawn to the town because of the salt ponds that gave Saltville its name."

Christiansburg well registers South Asian earthquake

The Richmond paper reports here ("Quake affected water in Va. well," 1/8/05) that the South Asian earthquake caused the water in a Christiansburg well monitored by the U.S. Geological Survey to rise and fall three feet:

"Strong oscillations at a 450-foot-deep well near the Round Meadow Country Club in Christiansburg in western Virginia started about an hour after the magnitude 9 quake struck some 9,600 miles away. Seismic waves travel through the Earth at about 7,400 mph."

Musgrave joins up with Redskins

Bill Musgrave sort of almost came back to Virginia, as the AP reports here that Joe Gibbs signed him up to coach for the Redskins.

Musgrave was the offensive coordinator in Charlottesville from 2001-2003.

Warner and the blogs

This AP report about Governor Warner says: "Warner's name has bubbled up in nationally syndicated columns, on political talk shows, in a December edition of Newsweek and on Web sites and Blogs as the Democratic party regroups from John Kerry's defeat and begins to debate its direction for a 2008 presidential race with no front-runner in either party. "

Court appearance results in probation and marriage with public defender as best man

The Johnson City paper has this story about the unusual court experience of a fellow named Nathan Hicks, and it says in part:

"Playing the role of Cupid, Judge Lynn Brown presided in his chambers over a ceremony that he had inspired about a half hour earlier with a pointed suggestion that Hicks marry Valerie Hammonds. The impromptu marriage featured Assistant District Public Defender Jim Lonon, Hicks’ attorney, as best man. . . .

Hicks, 30, was in court on a host of charges that ranged from public intoxication to aggravated burglary. After [Judge] Brown set one of his cases for trial, Hicks asked Brown for permission to have a few minutes to talk with [his girlfriend] Hammonds. . . .

Brown had other ideas — telling Hicks that he should marry Hammonds instead. As it turns out, Hicks and Hammonds liked the idea, and Brown told bailiffs to take the couple to the county clerk’s office to get a marriage license. First, Hammonds had to stop by an automated teller machine to obtain the money to pay the $93.50 license fee.

Then, they headed back to Brown’s chambers, where he exchanged some small talk and jokes with the couple and Lonon before he performed the ceremony. . . .

Afterward, Hicks abandoned plans for a trial, entered pleas to six crimes and was placed on probation for eight years. He had spent 218 days in jail, and Assistant District Attorney General Janet Vest Hardin didn’t bother asking Brown to make Hicks stay in jail any longer."

Friday, January 07, 2005

Virginia woman awarded $3.9 million in damages in auto case in Montana

The Billings, MT, paper reports here: "A jury in Billings has awarded $3.9 million in damages to a Virginia woman who was injured in an automobile accident in Billings."

Poverty lawyer and public defender named to VLF

The Charlottesville paper has this article ("Two local lawyers named Virginia fellows," 1/7/05) about two Charlottesville lawyers who have been named to the Virginia Law Foundation.

Thursday, January 06, 2005

James Behan picks James Kilgore

Captain's Quarters has this post citing the wisdom of "James Behan," who is said to have predicted that "James Kilgore" will carry Virginia by a wide margin in 2005.

Here is another site that has picked up on Behan on Kilgore.

Stuff I wouldn't know if I didn't read BTQ

It says here: "Strip clubs are similar to gambling houses in that ATMs are available when you run out of money but think you're just a few more dollars away from getting lucky."

Wise County murderer gets no life insurance on the victim, his wife

In Connecticut General v. Riner, Chief Judge Jones held that under either ERISA or Virginia law, Doug Riner was not entitled to the benefits of his wife's life insurance.

Judge Wilson's ruling against insurance coverage for Hotal Roanoke convention center upheld

In Hotel Roanoke Conference Center Commission v. Cincinnati Ins. Co., the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Traxler, and Duncan affirmed Judge Wilson's decision in the dispute about whether there was insurance coverage for the damages sustained by Conference Center when its new building adjacent to the Hotel Roanoke went bad. The issue on appeal was whether the Commission's insurance covered its losses from what happened to the building. Paul Beers argued for the Commission and Phil Anderson argued for the insurer.

Governor Warner's new budget stiffs Virginia's circuit court clerks

This article ("Circuit Court clerks disappointed that more staffing seems unlikely," 1/6/05) from the Norfolk paper begins:

"This was supposed to be the year when the Circuit Court clerk’s staff would bounce back in size after forced layoffs, firings and furloughs in 2002.

But last month, Virginia Beach Circuit Court Clerk Tina E. Sinnen got an e-mail that dashed those hopes. She learned that Gov. Mark R. Warner’s budget for the coming year would not include more money for court clerks."

Claude Allen takes White House position

The Richmond paper reports here ("Bush taps C. Allen as policy adviser," 1/6/05) that Claude Allen will not be renominated to the Fourth Circuit because he is becoming the domestic policy advisor to President Bush.

This development gives the President another chance to try to reach some understanding with the Maryland senators, on the successor to Judge Murnaghan. I'm sure that accommodiating those two remain a top priority at the White House.

Wednesday, January 05, 2005

Bring Bill Musgrave back to Charlottesville where he is appreciated

It has been reported that Bill Musgrave, former offensive coordinator for the Virginia Cavaliers, has been fired as the coordinator for the NFL's Jacksonville Jaguars.

Geez, they ought to bring him back to Charlottesville, where his offense was mostly fun.

Old school turned hot property

In Blacksburg, developers are itching to get their hands on the old Middle School property, which has the School Board wondering what to do, as reported here ("Montgomery Co. ponders old school's future," 1/5/05) in the Roanoke paper.

Section 7 rights include right to not wear union logo

On January 4, 2005, in Lee v. NLRB, argued February 26, 2002, the Fourth Circuit in an opinion by Judge Widener, joined by Judge Luttig and District Judge Herlong, granted the petitions for review of individual workers on their claim that the company's policy requiring them to wear a uniform with both the company logo and the union logo violates their section 7 rights under the National Labor Relations Act to refrain from concerted union activity.

Denial of qualified immunity in deadly force case reversed

In Waterman v. Batton, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by District Judge Hudson with Judge Motz dissenting, reversed the denial by District Judge Blake in Maryland of summary judgment to the individual defendants based on qualified immunity, in a case where the defendants were accused of using deadly force in violation of the decedent's constitutional rights.

Interestingly, part of the summary of the facts includes the appeals court's interpretation of a video recording of the events in question: "the video leaves no doubt that at the moment of acceleration, there were officers positioned close enough to the vehicle that Waterman could have run them over in approximately one second."

The Court also noted, with respect to the District Court's conclusion of unreasonableness: "While we may not question the circumstances that the district court assumed in analyzing the reasonableness of Appellants’ actions, the reasonableness itself—and specifically the question of what a reasonable jury could determine regarding reasonableness—is an issue that we consider de novo."

The majority concluded that the officers were justified in shooting at the decedent's car as they perceived it to be headed towards them, and that they were entitled to qualified immunity for continuing to shoot at the car as it drove past because the case law did not show that this violated the decedent's clearly established rights at the time of the shooting.

Judge Motz, in dissent, said Judge Blake had the case figured rightly.

Tuesday, January 04, 2005

Triplett sticks around, no carpetbagger he

The Coalfield Progress reports here that last year's Republican opponent to Congressman Rick Boucher, that is former NASCAR executive Kevin Triplett, is staying in the area and working on a new business in Bristol, affiliated with a public relations firm. Boucher's 2002 opponent, Jay Katzen, did not stay in the area after losing his race.

First the movie, now the book - new novel about Earnhardt fans

Here is a book review about a new novel called "St. Dale" about a group of 3 Car fans. Real-life Dale Earnhardt fans may have watched the ESPN made-for-TV about him called "3."

The review notes, among other things, that Ms. McCrumb has been a writer-in-residence right here in Bristol over at King College.

Shameful confession

Look who comes up on top of a Google search for the words terrible lawyer.

I called your number before but I lost my nerve

In this page called Jenny, are you there? (867-5309), some guy tracks down the telephone number from the '80's song by Tommy Tutone for every single area code in the U.S., and the only Jenny who answered was a man. has this entry on the same topic, which concludes: "The song '867-5309 (Jenny)' serves as the centerpiece for a 2004 Cingular television ad touting number portability."

State does not lose state law sovereign immunity by removing case to federal court

In Stewart v. State of North Carolina, the Fourth Circuit in an opinion by Chief Judge Wilkins, joined by Judges Luttig and Gregory, held that the State of North Carolina did not waive its state law sovereign immunity defense to state law claims by removing a case that joined state and federal law claims to federal court.

Chief Judge Wilkins concluded that the district court had erred in extending the Supreme Court's decision in Lapides v. Board of Regents, 535 U.S. 603 (2002), dealing solely with the Eleventh Amendment, to the issue of whether removal meant some kind of waiver or abandonment of the state law immunity where there was no consent to state court jurisdiction for such a claim:

"Lapides addresses whether a state that removes an action to federal court having already consented to suit in its own courts can invoke Eleventh Amendment immunity; it does not resolve whether a state that has not consented to suit in its own courts maintains either the broader concept of sovereign immunity or Eleventh Amendment immunity upon voluntarily removing a case to federal

The Court noted:

"Unlike Georgia in Lapides, North Carolina had not consented to suit in its own courts for the relevant claims asserted by Stewart."

The Court concluded:

"North Carolina chose to employ the removal device to have the issue of sovereign immunity resolved in a federal, rather than a state, forum. We see nothing inconsistent, anomalous, or unfair about permitting North Carolina to employ removal in the same manner as any other defendant facing federal claims. We therefore hold that North Carolina, having not already consented to suit in its own courts, did not waive sovereign immunity by voluntarily removing the action to federal court for resolution of the immunity question."

All Deliberate Speed has this post about the decision.

Liberal Virginia editorialists don't trust juries or U.S. Senators

Yesterday the Roanoke paper said don't let juries of actual people decide the death penalty for teenaged murderers, and today the Norfolk paper says here, don't let the U.S. Senators have an up-or-down vote on the 20 federal appeals court judges renominated by President Bush.

Monday, January 03, 2005

Your clients were much worse than mine!

Margaret Edds, whom I've mostly decided against, nevertheless has zeroed in on one bit of real absurdity, explaining here: "If Kilgore plans to discuss Lem Tuggle and Richard Whitley and their sordid crimes, then Kaine plans to discuss James Davis and Ronald Morgan, two of Kilgore's clients. Davis is a former hospital administrator in Lee County whose embezzlements helped force the struggling, Appalachian facility into bankruptcy. Morgan is a former state worker convicted of falsifying mining inspection reports to benefit companies."

That's just bizarre.

Roanoke Times says no more death penalty for juveniles in Virginia

In this editorial, the Roanoke paper calls for Virginia to end the practice of executing juveniles who are murderers.

The editorial cites the Malvo verdict. The Malvo verdict could also support the opposite conclusion - leave the law as it is, and trust the juries.

Sunday, January 02, 2005

Puckett expects final approval for 4th judgeship in 29th Circuit, says new judge should be from Tazewell County

The Bluefield paper reports here that Senator Puckett, in his review of the upcoming legislative session, expects to see the final approval of a fourth judgeship for the 29th circuit:

"The new judgeship is funded, and could begin as soon as March 1," Puckett said. "However, I understand the process will be sometime in the latter part[] of the session. I'm very supportive of an individual from Tazewell County being named to the judgeship. There is no reason why you shouldn't have one in Tazewell, and it is the only county of the four counties in the 29th judicial district that doesn't have it's on sitting judge."

35,429 Virginia inmates

This AP article says the current number of inmates in Virginia's penitentiaries has not increased nearly as much as expected would be the result of the abolition of parole.

Did Verizon fool the General Assembly?

The Daily Press reports here ("Verizon bill vexes some, confuses others," 1/2/05) that last year, Virginia's ILEC, Verizon, convinced the General Assembly to pass a statement of policy, which Verizon is now trying to use in its case before the State Corporation Commission to charge higher rates to rural customers.

Problems with the Birth-related Neurological Injury Compensation Program

The Richmond paper has this story ("Birth-injury aid's false expectations result in disarray," 1/2/05) describing problems with the Birth-related Neurological Injury Compensation Program.

The article concludes:

"This year, obstetricians are at the head of the line seeking General Assembly help. Their objectives: tighten entry requirements for premature infants into the birth-injury program, limit awards for pain and suffering in malpractice suits, increase Medicaid reimbursements to doctors who treat indigent patients, and preserve access to medical care."

Challenger from Warrenton in Republican primary?

Waldo has this post which says the Mayor of Warrenton, a fellow named George Fitch, is intimating that he has plans to challenge for the Republican nomination for governor next year.

Four good articles in Virginia Lawyer

The Virginia Lawyer for December 2004 includes four fine articles of interest to me:

Estoppel by Inconsistent Positions or Judicial Estoppel: What's in a Name?, by Robert E. Scully Jr.

Gray v. Rhoads: Doing Indirectly What You Can't Do Directly, an article about Va. Code 8.01-404, by John C. West and Megan C. Rahman

"It's the Sneaking Around that Gets You in Trouble": The Key to Unlocking Fiduciary Duty Litigation Claims, by Gregory J. Haley

Protecting Trade Secrets — A Review of Virginia's Statute, by Scott Ford

Nibblers at the NLRB

This Labor Blog post links to a NY Times article which suggests the current National Labor Relations Board is nibbling away at the rights of unions to organize in new places.

Record verdicts for race discrimination claims in E.D. Va.

Last week, VLW reported in its Feature Article: "Two black trash collectors have been awarded $2.6 million each in a race discrimination case in Alexandria federal court; the awards apparently set the Virginia record for an individual's verdict in a race case."