Saturday, January 15, 2005

Boing Boing takes on the Martin case

Here is a lively post from the Boing Boing blog, one of my personal favorites, dealing with the Martin case.

Three years ago in Grundy

De Novo links here to this chilling article about the crime and this optimistic report about the recovery of the community of the Appalachian School of Law following the murders of Dean Sutin and Professor Blackwell three years ago on January 16, 2002.

The ACLU on the Martin case

On Friday, the ACLU issued this press release about the decision by the Virginia Supreme Court in the Martin case.

More on the Virginia Supreme Court's fornication decision

The Richmond paper reports here ("Va. scraps ban on sex for singles," 1/15/05), the Washington Post reports here ("Singles' Sex No Longer a Va. Crime," 1/15/05), and the AP reports here on today's decision in the Martin case.

My earlier posts on Lawrence, etc., include this one, this one, and this one.

Friday, January 14, 2005

Fourth Circuit approves application fo Age Discrimination in Employment Act to apprentice programs

Jottings has this post analyzing the Fourth Circuit's decision to approve EEOC regulations extending the ADEA to apprenticeship programs.

Good thing I've not had a criminal case in a while

CrimLaw says here there is an Attorney General opinion that it is illegal for a defense lawyer in Virginia to hand over the presentence report for a state court prosecution to his client, or something like that.

Virginia's Blog 702 correspondent speaks

Three opinions decided today involve the use of expert testimony in civil cases in Virginia.

In Vasquez v. Mabini, the Virginia Supreme Court concluded that the testimony of an expert witness in a wrongful death case should have been excluded because of its unreliability. The expert gave testimony based on assumptions that the decedent (who in life never made more than $7,000 in a year) would get a job paying at least $16,000 per year, get a 401(k) savings plan, get a bunch of raises, and so on.

The Court explained:

"We have never, however, construed [Va. Code 8.01-401.1] to permit the admission of expert testimony that lacks evidentiary support. . . . Estimates of damages based entirely on statistics and assumptions are too remote and speculative to permit 'an intelligent and probable estimate of damages.' . . . . Expert testimony founded upon assumptions that have no basis in fact is not merely subject to refutation by cross examination or by counter-experts; it is inadmissible. . . . Furthermore, expert testimony is inadmissible if the expert fails to consider all the variables that bear upon the inferences to be deduced from the facts observed."

Analyzing the expert's conclusions that the decedent would have obtained full-time work, what it would have paid, what raises she would have obtained, were all not based in fact, even where they involved otherwise valid statistics. The Court concluded:

"Because the expert testimony was based upon fictional assumptions not supported by the evidence, it was speculative and unreliable as a matter of law and should have been stricken."

In Pettus v. Gottfried, the Virginia Supreme Court concluded that the trial court erred in a medical malpractice case by allowing into evidence the testimony of the decedent's treating physicians on matters of opinion, without expressing whether the conclusions offered were to a reasonable degree of medical certainty as required by Va. Code 8.01-399. Under the statute, "when a party seeks at trial to admit evidence of a treating physician’s diagnosis, such evidence is admissible only if it is offered to a reasonable degree of medical probability."

In Hinkley v. Koehler, the Supreme Court held that the one year requirement for an expert witness to testify as to the standard of care in a medical malpractice case under Va. Code 8.01-581.20 was not met by a witness who had not really seen any patients in that time, and his work as a teacher and consultant was not a substitute for the requirement of "active clinical practice."

New website - Virginia Appellate News & Analysis by L. Steve Emmert

Worth checking out is this page, Virginia Appellate News & Analysis by L. Steve Emmert, a lawyer in Virginia Beach. He's got summaries of all the Virginia Supreme Court opinions decided today.

Road through residential area not valid as accessory use to mining of adjacent property

In the Orange County zoning case, Capelle v. Orange County, where a single "lot" extended into two different zones, the Virginia Supreme Court held that a haul road in the residential zone could not be valid, even as an accessory use to the mining in the same lot in the adjoining industrial zone, and not withstanding the general definition of "accessory use" in the zoning ordinance, which specifically referenced the term "lot."

Not that I've ever spent much time thinking about these issues, but this decision could have gone the other way. For one thing, the Court recognized that there was some ambiguity in the language about accessory uses for the whole ordinance and accessory uses for the residential zone. There's some authority that ambiguity in a zoning ordinance weighs against the restriction and in favor of the landowner's use. "Statutes in derogation of the common law are to be strictly construed and not to be enlarged in their operation by construction beyond their express terms." Chesapeake & O. Ry. Co. v. Kinzer, 206 Va. 175, 181, 142 S.E.2d 514, 518 (1965) "[E]ven though a statute be remedial, when, at the same time, it is also in derogation of common law, it must be strictly construed." Sellers v. Bles, 198 Va. 49, 53, 92 S.E.2d 486, 489 (1956) (citations omitted). As the circuit court noted in Town of Mt. Jackson v. Fawley, 53 Va. Cir. 49, 2000 WL 33340622 (Shenandoah County 2000), "[t]he rule which prevails in most jurisdictions, at least in the absence of any statute to the contrary, is that since zoning ordinances are in derogation of the common law and operate to deprive an owner of a use thereof which otherwise would be lawful, they should be strictly construed in favor of the property owner." 53 Va. Cir. at 53, 2000 WL 33340622 at *4 (citations omitted). Compare City of New Orleans v. JEB Properties, Inc., 609 So.2d 986, 989 (La. App. 1992) ("A zoning ordinance, being in derogation of the property rights of private ownership, must be construed to allow the least restrictive use of the property.").

In addition, if the Court's analysis is correct, then the general definition of the accessory use in the zoning ordinance is just complete surplusage, as the separate definition for each zone will be controlling. This conclusion would seem to "violate the settled principle of statutory construction that every part of a statute is presumed to have some effect and no part will be considered meaningless unless absolutely necessary." Sansom v. Board of Sup'rs of Madison County, 257 Va. 589, 595, 514 S.E.2d 345, 349 (1999).

It is not a good thing if the Supreme Court is going to second guess zoning officials on the meaning of local ordinances, when the correct outcome is, to borrow another zoning term, "fairly debatable," and it appears that is what happened in this case.

Virginia Supreme Court overrules Zysk, declares fornication statute more or less unconstitutional

In Martin v. Ziherl, the Virginia Supreme Court overruled its decision in Zysk v. Zysk and held that a Virginia plaintiff is not prohibited by the illegality of fornication from suing his or her partner for giving him or her veneral disease.

This civil case highlights everything that is wrong with Lawrence. The best rationale for a prohibition against sex between unmarried people is to prevent the spread of venereal disease. How can this plaintiff argue, on the one hand, that there is no rational basis in support of the Commonwealth's prohibition against fornication, but on the other hand, she herself has contracted herpes for which she is entitled to substantial damages? The facts of her own claim prove the rational basis for the criminal statute. Drunk driving cause automobile accidents, so drunk driving should be prohibited. Unmarried sex causes people to get VD, so unmarried sex should be prohibited. There's nothing irrational about that kind of legislative decisionmaking, and therefore nothing unconstitutional about that kind of conclusion in support of the fornication statute.

The Court said they could find no principled way to distinguish Lawrence. They didn't even try! There is no constitutional analysis in this opinion! The Lawrence case does not say that a state can never justify criminalization between consenting adults, one of whom has a veneral disease. In fact, the word "disease" is no where in any of the opinions from Lawrence. Nevertheless, the Virginia court reads Lawrence to have wiped out every state interest for sex laws any state might articulate, regardless of whether it was raised or not raised in the Lawrence case. What principle allows that Lawrence applies beyond its facts, beyond the briefs, beyond the positions of the parties, to other statutes with other rationales that were not raised in Lawrence?

I was just arguing about it this way - take the sentencing guidelines. They've been around for all these years, been litigated up and down, never found to be unconstitutional until somebody unlocked the code and got the Booker decision this week, after all those criminal defendants have tried all these years. Now, take Lawrence - can it really be read to say that no state ever can unlock the code to articulate a rationale for a law involving private, consensual sex between unmarried persons that will pass muster under the low-level rational basis test? Who says that will never happen? Who says that Lawrence applies to arguments that were not considered in Lawrence? Who says that Lawrence gives the Virginia Supreme Court a free pass from having to roll up its sleeves and engage in some actual constitutional analysis before declaring a law of the Commonwealth unconstitutional? To paraphrase Judge Luttig from the Fourth Circuit, "bare citations to decisions by other courts [even the U.S. Supreme Court] cannot substitute for analysis." Wachovia Bank, N.A. v. Schmidt, 388 F.3d 414 (4th Cir. 2004).

Thinking on this decision some more, maybe the defendant in this case has a constitutional defense to liability on the tort claims of the plaintiff, if preventing the spread of venereal disease is not a valid state interest to support the fornication statute, maybe what he did cannot be constitutionally punished. Also, I suppose that this Martin case is officially the death of at least part of the much-maligned Mitchem decision, the wrongful discharge case based on the fornication statute.

Wahoo sunbathing and dog story

The unseasonable June-uary weather we have had caused me to recollect that back in the day, first years at the University would try to catch the sun in the cemetery, where those interred include the dog Beta.

SCHEV calls Clinch Valley bunch of losers, pols tells SCHEV to drop dead

This post says the SCHEV report in rejecting the proposed Southside Virginia university cited the example of U.Va. at Wise as a university with no positive effect on a bad local economy, and that Tim Kaine and others have promptly and properly denounced this aspect of the report as stupid.

Or, as one delegate put it, "The University of Virginia hasn't done much for Charlottesville and Virginia Tech hasn't done much for Blacksburg."

Virginia Supreme Court takes another two months on opinion in Muhammad case

This story says the opinion from the Muhammad sniper case due out today from the Virginia Supreme Court will not be released until the opinion day in March.

Thursday, January 13, 2005

Maura had the pow-ruh

Commonwealth Commonsense has this post taking issue with the comment in the newspaper intimating that a Virginia legislator had been "flogged by blogs."


In the wake of the decision in Booker and Fan Fan, I look in the paper and a quote from Professor Doug Berman (of this blog - with more than you can ever read on this opinion) is highlighted on the front page, then I'm driving and eating my Sausage Egg McMuffin and listening to Morning Edition and there's Professor Berman on the radio.

For one day at least, he was more famous even than the Boomer at ESPN.

What to do when 5 out of 7 have conflicts

The AP is reporting here that five of the seven justices of the North Carolina Supreme Court have a conflict in the tobacco payments case, where the cigarette companies have reneged on the last year of their deal before the change in the federal scheme kicks in.

Maybe if I'm a lawyer for the cigarette companies, I'm thinking that it's not the ones with the tobacco allotments but the other two that I'm worried about.

Wednesday, January 12, 2005

My law partner's son on CBS-TV Cold Case this Sunday night

From this law firm, Mark Lawson's son Mark II plays the boxer in this coming Sunday night's episode of the CBS entertainment program, "Cold Case." A link to a 30-second preview can be found

An interview with the proud parents will air on Channel 11 news in a couple of hours.

Tuesday, January 11, 2005

Bloggers bring down HB 1677

The Norfolk paper reports here that Del. Cosgrove declared that he would withdraw HB 1677 after he got 500 angry e-mails.

The article says, in part:

"A Chesapeake lawmaker withdrew a bill on Monday that would have required women to report fetal deaths, after he received more than 500 e-mails from people concerned that the measure would punish women who have miscarriages.

Opposition to the bill, HB1677, was generated by 'blogs,' personal Web sites set up by individuals who post information and encourage discussion about topics of interest to them.

Del. John A. Cosgrove, R-Chesapeake, was shaken by the speed and volume of the response as word of his bill traveled across the country via the Internet.

'I’ve never been blogged before,' he said. 'The tone of the e-mails has been disgusting. It’s, 'You’re a horrible person. You ought to be crucified.’ And those were the nice ones.'"

Famous fugitive commits suicide in Florida prison

The Norfolk paper has this tale of a Virginian who became famous criminal, friend of famous people, international fugitive, and who killed himself while waiting transport back to Virginia.

Electronic filing comes to district courts in SC

Via this post from Digital The State has this article on the state of electronic filing in the federal courts of South Carolina.

Judge Conrad dismisses copyright claim against police department for use of suspect's photographs

In Shell v. City of Radford, Judge Conrad of the W.D. Va. granted the City's motion to dismiss the copyright infringement claims brought by a professional photographer claiming that the city's police department has misused his art which was seized in connection with the criminal investigation into the death of a former model and assistant to the photographer.

The opinion includes a rare W.D. Va. discussion of fair use, albeit in the unusual circumstances of fair use by law enforcement investigators.

Delegate to get hearing in FOIA case against governor for files on pardoned felons

The AP has this report which say a Richmond Circuit Court will soon hear the FOIA case brought by Delegate Marrs seeking the files on the 2,000 felons pardoned by Governor Warner.

WV court watchers speculate what effect will the new justice have on the WV Supreme Court

The Charleston paper asks here whether the newly-elected justice to the West Virginia Supreme Court will be a "reliable pro-business vote."

Paul O'Neill comes to Bristol hospital, says abolish medical malpractice system as it now exists

The Bristol paper has this article on the comments of former Treasury Secretary Paul O'Neill on the occasion of his visit to the Wellmont Bristol Regional Medical Center here in town.

Prince William judge refuses to move case to Southwest Virginia

The Fredericksburg paper reports here that a judge in Prince William County has denied a request to move the trial of the alleged Route 29 stalker to Southwest Virginia.

Sunday, January 09, 2005

Bristol for doing a little dance in the end zone

This column about the economy in Roanoke says: "So many of our economic vital signs are pointing in the wrong direction, I wouldn't blame even Bristol for doing a little dance in the end zone of Victory Stadium."

I've no idea what that means, but it can't be good for Roanoke or Bristol.

What will happen with the Smyth County courthouse?

As reported here in the Smyth County paper, two months ago, Judges Lowe and Kirksey of the 28th Circuit gave Smyth County 60 days to come up with a plan to address security and space issues within the county courthouse.

Galax runs sheep out of town

The Richmond paper writes here ("Town puts sheep on the lam," 1/9/05) that the City of Galax is cracking down on the size of a herd of sheep within the corporate limits.

The article notes that similar limits would not apply to a herd of cattle.

New book on the big fossil site at Gray

The Johnson City paper has this article on The Bone Hunters: The Discovery of Miocene Fossils in Gray, Tennessee, a new book about the big local fossil find in Northeast Tennessee.

Judge and sheriff spar over courthouse security in Petersburg

The Petersburg paper has this complicated tale of a dispute between a Virginia sheriff and the local court over courtroom security.