Saturday, February 05, 2005

Single form of action bill advances

SB 1118, which "creates a single form of pleading for civil actions," is making its way through the Senate.

I read about this a while back and wondered what became of it. The change is to the good. It will eliminate one perennial problem, figuring out what to call that initial pleading, especially when you've got some statutory claim and nobody knows whether it is legal or equitable.

Virginia civil procedure is filled with incredible strangeness and ambiguity. You'd think after all these years, it would be pretty well-known, for example, what can be raised by a plea and how, or what can be raised on demurrer and how, and maybe these things are well-known but widely ignored.

On guns and smut in Virginia's libraries

This story says the General Assembly will not pass legislation to ban guns in Virginia's public libraries. On an unrelated matter, it says here that a Senate committee did not pass a smut-filtering requirement for public libraries in the Commonwealth - the measure failed on a 7-7 vote in the General Laws committee - but it says here that the House passed a similar measure on Friday by a vote of 76-17.

Third judgeship bill passes Senate, gets past House Appropriations by vote of 14-9

On Friday, the Senate approved a third judgeship for the 28th Circuit, as shown here.

Also, it says here the vote in the House Appropriations committee on the new judgeship was 14-9 in favor. The ayes were Dels. Callahan (R), Putney (I), Dillard (R), Morgan (R), Tata (R), May (R), Sherwood (R), Cox (R), Councill (D), Phillips (D), Spruill (D), Stump (D), Joannou (D), and Abbitt (I). The nays included Dels. Hamilton (R), Ingram (R), Wardrup (R), Dudley (R), Reid (R), Jones, S.C. (R), Hogan (R), Scott, J.M. (D), and Miles (D).

I wonder what all that was about.

Verizon bill to bypass cable franchise requirements gets held over

The Richmond paper reported here that the legislature will not pass in this session legislation proposed by Verizon that would allow it to provide cable television services without going through the normal franchising process. In some places in Virginia, Verizon has applied for a traditional franchise.

Gay marriage amendment tied to fears about Virginia judges

The Washington Times says here that supporters of the gay marriage amendment to the Virginia Constitution "fear Virginia judges will be as liberal as those in Massachusetts."

Well, you knew somebody was going to say that. In this Balkinization post, Balkin explains yet again how the strategy of litigation over gay marriage - with the New York case being the latest ruling - is not to be preferred over a strategy of achieving results through the legislature. He's probably right, in the sense that any court decisions in favor of same-sex marriage will cause an escalating counter-reaction - to the detriment, really, of the justice system in general and judicial independence in particular.

When the members of the Virginia Supreme Court are next up for reappointment, will they be asked questions about their ruling in the fornication case and what they think about same-sex issues? I'm guessing that they will. I'm guessing that every judge up for appointment or reappointment at every level in every state will be asked those kinds of questions, for the foreseeable future. And, probably, that's a shame.

Proposed amendments to Virginia's fence law tied to Caroline county murder case

The Richmond paper reports here on proposed amendments to the fence law of Virginia, which allows landowners to stick others with the costs of their fence. The article notes that the Caroline County murder case was the end of a dispute between adjacent landowners over payment for a fence.

Fourth Circuit hears the case of the Wiccan against Chesterfield County

The Richmond paper had this article on oral argument before the Fourth Circuit in the case of the Wiccan who sued to get on the list to give the opening prayer at Board of Supervisors meetings. (Incredibly, the article does not say who were the judges on the panel - further evidence that nobody at the Richmond paper reads this blog.)

The office of the County Attorney for Chesterfield has seven lawyers, including two who were at William & Mary law school while I was there. They get more than their share of interesting cases.

Count me among the 14,000

I really enjoyed this article about the $1 million donation to U.Va. by Professor Sabato.

Wise County as possible pilot site for e-filing program in Virginia state court

The Coalfield Progress reports here and here on those who want to have electronic filing in the Circuit Court of Wise County.

Lately, I've heard that some other local judges passed on an invitation to apply to become one of the rural test jurisdictions for this program, and also some big-firm lawyers from other states have told me a few horror stories about e-filing in their home jurisdictions.

I-81 problems mostly hype?

This VDOT study says, as I read it, that Interstate 81 is not in bad shape - yet. Among other things, the overall average speed is 69 mph, more than the speed limit anywhere in Virginia. The "weighted crash score" (whatever that means) for Interstate 81 is lower than the statewide average for interstate travel - the other interstates being 64, 66, 77, 85, and 95.

I drove up to Harrisonburg on Thursday and back on Friday and there were not too many tense moments. Way back when, I drove frequently from Williamsburg to McLean, and once you got to Fredericksburg, it was just a free-for-all. The big trick in driving on interstate out here in the hills is figuring out how to get out of the way of the trucks blasting down the downslopes.

The difference between a but for instruction and a motivating factor instruction

In a Title VII retaliation case, the Fifth Circuit has held that using the "lower standard" on causation of "motivating factor" instead of "but for" is reversible error, according to this Jottings post. The case is here.

Golly, I've argued that before, but I can't remember the circumstance.

Would it have made a difference if the guy was a lawyer in the Martin case?

According to this post, a Philly judge has ruled that the plaintiffs suing lawyers for bad legal advice are not barred by the illegality of the conduct they undertook based on the bad advice, as sort of a public policy exception to the illegality defense.

ACSBlog cites Judge Wilkinson

The mostly liberal ACSblog in this post quotes Judge Wilkinson's dissent in Humphries v. Ozmint.

In the Humphries case, the dissenters were Wilkinson, Michael, Gregory, and Duncan, not the likeliest of combinations (or the unlikeliest).


I've not yet unraveled but it sure looks interesting.

Wednesday, February 02, 2005

Municipality not liable under section 1983 for euthanasia of 80 dogs and a bunch of cats

In Bogart v. Chapell, the Fourth Circuit in an opinion by Judge King, joined by District Judge Flanagan from North Carolina, with Judge Williams dissenting, held that the South Carolina plaintiff had no procedural due process claim for the destruction of her property interest in her overcrowded bunch of cats and dogs without some kind of pre-deprivation hearing, because the loss was the result of random and unauthorized activity, as it was contrary to state law, and the government affords the plaintiff a post-deprivation remedy in the form of some kind of money damages claim.

Judge Williams dissented, claiming that the outcome was determined by two prior Fourth Circuit opinions involving the Parratt/Hudson/Zinermon line of cases dealing with the question of what is random and unauthorized.

I think Judge Williams has got the better of it, although it would be nice if the defendants could say, oops, this was unauthorized, so we can't be liable. Perhaps I am confusing Parratt with the requirements of Monell, for custom, policy, or practice, but I don't think in either issue can the locality inevitably defend by claiming we have a policy against constitutional violations.

Former judge Starr gets the Fourth Circuit treatment

This article about an appearance by former appeals court judge Kenneth Starr before the Fourth Circuit says: "Afterward, the justices stepped down from the bench and shook hands with Starr and Baldwin. One of the judges approached Starr and asked the California resident, 'Where's your tan?''

The Fourth Circuit, notably among all the courts everywhere, greets every lawyer after every argument. I've asked around and no one has ever told me that any other court does precisely that.

TalkLeft has this post.

Mendota trail project stalled in litigation

The Kingsport paper reports here ("Lawsuits stall development of Mendota Trail project," 2/2/05) that the rail-to-trail project at Mendota has been stalled in litigation, and trail advocates have a new website.

Church split statute riles national denominations

SB 1305 changes Virginia law with respect to the property of churches that are part of national denominations, supposedly in a way that helps the locals keep the property if they split from the big church. The Washington Post has this article with the response of the big denominations and other opponents of the bill.

What I can't figure is whether this statute would have some impact on independent country churches, currently I think it does not, but they have property disputes like everyone else.

Culpeper jury awards $50 million in sexual assault case

The Richmond paper reports here ("Jury awards $50 million in teen's sexual assault," 2/1/05) that a Virginia state court jury awarded $50 million in a sexual assault civil case brought against a man by a young woman who was victimized when she worked for him as a babysitter.

Zoning case lost in Virginia Supreme Court, brick plant closes down

The Charlottesville paper reports here ("Stung by loss, General Shale to close plant," 2/1/05): "Embattled brick-maker General Shale will close its Somerset operation in the wake of a Supreme Court ruling that thwarted its bid to mine elsewhere in Orange County."

Domestic asault and bettery

In Cowell v. Com., the Court of Appeals in an unpublished opinion affirmed the defendant's conviction under Va. Code 18.2-57.2, and stated in a footnote: "We note that the sentencing order erroneously recites that the felony offense of 'domestic asault [sic] and bettery [sic] (third offense)' is a violation of Code § '18.2-57.21 [sic].'"

Chief Judge Jones allows outside evidence in ERISA case

In Smith v. The Prudential Ins. Co. of America, a dispute over life insurance benefits under an ERISA plan, Chief Judge Jones decided to deny summary judgment to allow for consideration of additional evidence, beyond what was available to the plan administrator when it made its decision to deny benefits.

Police officer gets qualified immunity for warrantless search and seizure

In St. Clair v. Town of Rocky Mount, Judge Conrad granted the motions for summary judgment of the individual police officer and the town, in a case where a man claimed that he was the victim of an illegal search and seizure. The plaintiff's girlfriend came to police and said he had verbally abused and pushed and thrown a flower pot at her, and she wanted a police escort to the house to retrieve her things. The police met the plaintiff at the property and handcuffed him for ten minutes while the woman went into the house, to which she had a key, and where she had been living (so far as the police knew).

Another retaliation claim survives summary judgment

In Bowen v. Tempur Production USA, Inc., Chief Judge Jones granted partial summary judgment for the employer in a Title VII case, but allowed the case to go forward on the retaliation claim.

The opinion says: "Indeed, some evidence indicates management may have decided to fire Bowen as early as June 3, 2003, just two weeks after she first complained to a supervisor." Ouch.

Tuesday, February 01, 2005

NLU stops making sense

Here is a post commemorating the greatest post ever on Notes from the Legal Underground.

Psycho blogger, qu'est que c'est.

Man out on bond not in custody of court for purposes of escape statute

In Davis v. Com., the Court of Appeals in an opinion by Chief Judge Fitzpatrick joined by Judges Bumgardner and Frank overturned a decision by Judge Campbell of Grayson County and concluded that the defendant while he was out on bond awaiting sentence was not in the custody of the court for purposes of Va. Code 18.2-479(B).

Parental leave for school involvement?

SB 713 is a proposal that parents would require the following:

"Every employer shall allow each person employed by him in connection with any business or service, which person is a parent, guardian, or person standing in loco parentis of a school-aged child, at least four hours leave annually so that the employee may attend or otherwise be involved at that child's school."

The bill also gives a cause of action for employees against whom employers retaliate for exercising their leave rights under the new statute.

Senate bill for new judge in 28th Circuit gets through second Senate committee

It says here that the bill to approve another judgeship for the 28th Circuit has now made it through the Senate Finance committee. Previously, it passed through the Senate Committee for Courts and Justice. On the House side, the parallel bill has made it through Courts of Justice to the Compensation & General Government subcommittee of the Appropriations Committee, which includes Dels. Tata (Chairman), Putney, Ingram, May, Wardrup, Scott, J.M., and Joannou.

Bill to stop the Interstate 81 project

The Augusta Free Press has this article on SB 1319, which would put a stop to the proposed truck lane expansion of Interstate 81 in Western Virginia.

Standard of review for factfinding based on documents

In U.S. v. Stevenson, Judge Niemeyer wrote the following:

"Because we can read Stevenson’s letter and draw inferences from it just as the district court did, Stevenson argues that we should review the district court’s finding with respect to the letter de novo, and not for clear error. The assumption underlying this argument is that an appellate court reviewing documentary evidence can make a factual finding as well as a district court can, and, to the extent that an appellate court draws an inference inconsistent with a finding of the district court, the appellate court should follow its own finding. The argument, of course, recognizes that appellate courts defer to district court findings when they are based on credibility because credibility can only be determined by the district court, which is in a position to observe witnesses.

It is indeed true that only the trial court can observe "the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said," which is important to the determination of whether a witness is to be believed. Anderson, 470 U.S. at 575. But any assertion that this is the governing principle for appellate court deference to a district court’s factual findings is too limited and has been explicitly rejected by the Supreme Court. . . . It is well-established that even when findings of fact are not based on observations of credibility, but rather on undisputed evidence or on entirely documentary evidence, appellate courts must nonetheless defer to the trial court’s factfinding function."

Latest appeal in the Atkins case

The Daily Press reports here that in the ongoing case of Daryl Atkins, the defense lawyers are trying to get an immediate appeal of the trial court's ruling that on a retrial of the issue of whether or not he is retarded, the court will tell the jury that Mr. Atkins has been convicted of murder and is sentenced to death.

Monday, January 31, 2005

The King and Abe Lincoln

If the Baconblog lives to be 100, it will never catch my attention with anything better than this headline: Was Elvis a Melungeon?. The complete story says Elvis, Abraham Lincoln, and Ava Gardner were probably Melungeons.

I get a lot of hits on the blog from strange Google queries involving Melungeons.

Get out of the liquor business

One time when we were down at Hilton Head, a woman with a British accent came up to me in the grocery store (that big one with the good sandwiches, I don't remember the name) and she asked where was the liquor. (Why she chose me as likely to know the answer, I couldn't say.) I tried to explain to her that in fact, the only liquor sold in the state was through the state-run stores, of which there was one nearby. Why would that be, she asked, not knowing that everyone in the U.S. is an historian and constitutional scholar. I think it has something to do with the constitutional amendment that undid Prohibition, which amendment gave broad powers over liquor to the states, I replied. (Every detail struck her as more and more bizarre. "Prohibition?" she wondered.)

Here Waldo comments on legislation that made it out of committee that would get the Commonwealth out of the liquor business.

Street preacher caught neither betwixt nor between

In Moore v. City of Asheville, the Fourth Circuit in an opinion by Niemeyer, joined by Judges Luttig and King, held that the plaintiff street preacher nabbed in Asheville could not sue under section 1983 to overturn the state administrative proceedings, which he had failed to appeal, affirming the district court's determination to abstain from interfering with the state proceedings.

The Court did allow that the abstention doctrine would not apply to a suit for wholly prospective relief from the application of the city ordinances challenged by the plaintiff.

Federal question jurisdiction in a dispute covered by arbitration clause

In Discover Bank v. Vaden, the Fourth Circuit in an opinion by Judge Wilkinson held that "[a] federal court may . . . hear a § 4 [of the Federal Arbitration Act] petition to compel arbitration if, but for the arbitration agreement, subject matter jurisdiction over the case would otherwise exist by virtue of a properly invoked federal question in the underlying dispute."

Roanoke and Norfolk papers say pay court-appointed lawyers more, in fact pay everybody more

In this editorial, the Roanoke Times says the legislature should pay more for court-appointed attorneys in criminal cases, and while they're at it, every thing else. The editorial says: "The pending legislation happens to require funding for the criminal justice system, but the demand could just as well be for roads, mental health, the environment or the arts."

In this editorial, the Norfolk paper jumps on board, and gives Attorney General candidate Bob McDonnell some credit for his proposals in this area.

Sunday, January 30, 2005

A few interesting cases

In this story about the retirement who has worked in the General District Court clerk's office in Albemarle County for 28 years are mentioned: "the case of the bull who wandered into a neighbor's swimming pool" and "the man who was sued for eating more than his allotment of a shared hog."

First black judge in Arlington County, Howard law graduate, dies at 80

The Washington Post has this interesting story on the life and times of Judge Thomas Randolph Monroe, who served Arlington County as a judge from 1972 to 1993.

The obituary says in part:

"Born in the Eastern Shore's Northampton County, near Cape Charles, Va., Judge Monroe worked as a caddy at a whites-only golf course and was a star center fielder for the town's baseball team. He graduated from Johnson C. Smith University in Charlotte and served as a sergeant in the Army in the Pacific and European theaters during World War II. He received his law degree from Howard University in 1951 and set up a private law practice in Arlington the next year.

He practiced law for 20 years and quickly established himself as a civic leader, serving as president of the Arlington chapter of the NAACP in 1955 and circulating a petition to desegregate Arlington's schools. Into the early 1970s, he stayed in the struggle, joining a group of parents whose children attended the all-black Drew Elementary School in a desegregation suit against the county."

Extra value from having prisons in Wise County

This commentary from the Roanoke paper says that the census figures credit Wise County with the inmate population of the penitentiaries there, which means more government money from the state and federal government based on population.

The commentary cites a study from the Brennan Center at NYU Law School, Incarcerated People and the Census: Painting a Distorted Picture of Virginia, which even has a color picture of the prison at Wallens Ridge on the cover.

Proposal cuts attorney fees, limits substantive provisions, of Virginia Consumer Protection Act

Hugh Lessig of the Daily Press has this account of proposed amendments to limit attorneys' fees and punitive damages under and carve out some exceptions to the substantive scope of the Virginia Consumer Protection Act, contained in SB 912, a bill proposed by Senator Norment from Williamsburg.

Another Judy Jagdmann story

The Kingsport paper has this mostly-fun story about the next Attorney General of Virginia, who will be sworn in this week by her father, who is quoted at some length in the article.

The article says that Judge Williams was so excited when he learned of Ms. Jagdmann's confirmation that he picked up the tab for his colleagues. I interpret this to mean that he ordered peach cobbler for everyone.

The post-Booker thinking of the U.S. attorney for the E.D. Va.

Professor Berman has this post about a speech given by the U.S. Attorney for the Eastern District of Virginia, with his ideas about the effects of Booker and Fan Fan and what he thinks the Congress should do about it.

One interesting point was that the E.D. Va. judges had stuck within in the guidelines in all but one of 20+ sentencings since the Supreme Court cases came down, with the one sentence below the guidelines.

Professor Berman concludes regarding one of the points made that the Department of Justice does not merely want mandatory guidelines, it wants mandatory guidelines without having to meet its burden of proof before juries.

In many ways, this entire discussion is strange to me. In state court in Virginia, it is my impression that the defendants plead guilty to get the benefit of the guidelines and to avoid the indefiniteness of sentencing by the juries, which have been known from time to time to really stick it to drug dealers and such.

Stuff that I thought was interesting on Iraqi Election Day

Last night I'm watching Fox News (yeah, yeah), and they've got this fellow who was a former hostage over there, a truck driver from Mississippi or some such, and he winds debating the propriety of Sen. Kennedy's call for troop withdrawal with Jesse Jackson, and he managed to get the upper hand, even though Jackson started out with some memorable things to say about what it was like when he got to vote for the first time in the 1960s. I'm not too sure how far you can go an analogy between the effect of the Voting Rights Act for black Americans in the 1960s and this weekend's vote in Iraq, but the Rev. Jackson seemed to be saying the Iraqis just aren't worth it and the Southern man was saying, no, we need to help these people, for their sake and ours.

This was all very ironic and interesting, but once I saw who was winning I clicked back to the Golf Channel, for an important replay of old dudes playing golf in the mists of Hawaii, the superficial fellow that I am.

When I went to vote back in November, I had some reasons, but none of them were as compelling as whatever made those Iraqis run the gauntlet to be counted over there this weekend. I understand (via Instapundit) that already the voting has resulted in some shifting goalposts (which seems like a perilous phrase for either side when talking about Iraq).

But, if you were looking for reasons for the vote in November, a lot of what bummed people out about Kerry is described in this Althouse post about his appearance today on Meet the Press. (There's a lot more to Prof. Althouse besides the new car.)

That Carolina game, ouch

In this post, Dave Sez sums up the horror of today's Virginia basketball game.

The last time I watched the Tarheels play in Charlottesville, they were ranked No. 1, and lost to the Cavaliers in January 1986, in what was probably the most satisfying basketball game I ever saw anywhere except for U.Va. beating Roy Williams and the Kansas Jayhawks when I was in Kansas City in 1995 (and Conestoga Valley beating #1 Carlisle and Jeff Lebo at the Pennsylvania State Farm Show Arena in 1983).