Saturday, March 26, 2005

Some beach

Back in a week, if the gators or sun poison or the North American tsunamis don't get me.

Friday, March 25, 2005

Take Your Adversary to Lunch

I really liked the idea of this program called: "Take Your Adversary to Lunch," but why only once a year? And, who is my adversary? I can't think of any in particular - the worst ones, always, have been lawyers not from around here.

Thursday, March 24, 2005

Former school board member sues Norfolk paper for $5 million

The AP reports here that a former School Board member and political candidate has sued the Norfolk paper for defamation over statements of fact made in a campaign eve editorial.

DRI's appellate advocacy section newsletter hits the streets

At this post by Ray of Minor Wisdom you can check out the latest DRI Appellate Advocacy section's newsletter, which includes in the way back some summaries by me of some Fourth Circuit cases - but the good stuff is in the articles.

You could teach a seminar just from this one newsletter, you read it and feel your brain swell with ideas.

Birdwood redone

This press release says that the Birdwood, the U.Va. golf course at the Boar's Head, is being redone. Birdwood opened in the mid-1980s when I was a student.

One time I played there with Young Scottie Michaux and he scored his first eagle, the joy of which was reduced, he said, by his playing partner's score of 12 on the same hole.

Virginia: mother of banjos

Stelling Banjo Works: The Ultimate Banjo has links about their banjos and the invention of the banjo in Virginia.

Wednesday, March 23, 2005

On complete understanding

In my office this afternoon, my assistant asked me "Have you seen Ray?"

I had to think about this, and I was about to say well, I saw him a few days ago and I talked to him on the phone at lunch time. (Ray is my dad's name.)

About that time, someone else said, "I saw Ray and it was a great movie."


Then, again, my assistant also told me today that the reason why her computer was not working for a few hours earlier this week had been determined - it was not plugged in.

American Prospect Online considers Tim Kaine, religion, and the death penalty

In this article titled "Raising Kaine," the author Rob Carver considers the prospects for Democratic gubernatorial candidate Tim Kaine to attract the support of religious voters in the Commonwealth.

The articles notes that "while Catholics went 52 percent to 47 percent for Bush nationally, in Virginia they went 63 percent to 36 percent for Bush."

Juror's blog tainted trial?

This post liks to a story about a case where one of the lawyers is claiming that a juror's blog tainted the trial. The article does not name the blog.

New version of CM/ECF with free opinions?

According to this post, some federal courts may soon implement a a new version of CM/ECF that allows free public access to written opinions.

Both the Washington Post and I were in Gate City on Monday

The Washington Post had this article about the Gate City for candidate Jerry Kilgore, and I was there myself. (On that same day, Tim Kaine was down the street here in Bristol, but I didn't get over there.)

I've never been to a political rally in my life, but I figured that we may never pass this way again, sort of like the World's Fair at Knoxville. So, I went. My first impression (never having been there) was how small is the Gate City H.S. gym, what must it be like for basketball games in there, very exciting and loud. There were many older people there, at least half of the crowd looked to be retirement age to me, including the old fellow standing next to me who periodically bellowed, "You said it, Jerry." I looked around trying to count the lawyers I know (5? not too many) and trying to figure out which ones were the campaign people and which ones were the reporters - who were those guys standing at the back with copies of the candidate's speech? Cable guy Ernie Benco grinned down at me from the camera platform at the back of the room, and I had to laugh thinking that the Chester case when I met him was tried 10 years ago. Also in the hall, of the people from that Wise County Electoral Board case, were Paul Varson and Chances Varson (I didn't talk to them). Former Congressman Bill Wampler, Sr., was there, looking like Sean Connery with his white beard, working the crowd as if he was the candidate. The closest to an old-fashioned stemwinder of a speech (as I imagine one to be like) came from Sen. William Wampler, Jr., almost at the beginning of the night - he does well, I think. I thought that the Notre Dame fight song was a fairly ecumenical choice of music for the band to play as the candidate came into the gym.

UPDATE: A reader says: "Gate City High School has used the Fighting Irish song for years, as its own. This is the reason that this particular song was selected."

The substantive parts of the candidate's speech were interesting, some of the rest of it was not, and the funniest thing he said was that he has the worst accent of anyone who wants to be governor apart from Arnold Schwarzenegger. And, when the speeches were over, I watched the confetti fall for a while, then walked over to Jerry Kilgore and shook his hand, said hello to Sen. Wampler, and went on home.

It was exciting, but not as exciting as, say, the time I saw Charles, Prince of Wales at William & Mary Hall, now that crowd was nuts.

Of the substantive ideas in the speech, the one that caught my imagination was the regional transportation authorities. I'm not sure what this means, but it probably means something better than what we have now.

I looked for John Behan when a call was made for Republican elected officials to raise their hands, but I couldn't actually see who had their hands raised, all I could see was the raised hands.

Senator Warner of Virginia is one of those question marks on changing filibuster rules for judicial nominees

The Washington Times reports here that the Republicans do not have the votes to change the Senate rules to eliminate filibusters on judicial nominations, and one of the votes they don't have is Virginia's own Senator John Warner, seen in Gate City a few days ago.

The joys of Smithfield ham

Incredibly, the New York Times has this article on Virginia ham, or specifically, Smithfield ham, and it mentions one of my favorite places for breakfast, the Old Chickahominy House in Williamsburg, with its. "copious plantation breakfast, featuring eggs, grits, sausage, bacon and ham."

Funky commentary on the Virginia pledge case

Here is commentary from some kind of witch/pagan news site on the argument before the Fourth Circuit in the Virginia case challenging the use of the Pledge of Allegiance in public primary schools.

Odd Tim Kaine fact

The Lynchburg paper reports here that on his hamburger, gubernatorial candidate Tim Kaine likes "mustard, chili, slaw and cheese."

Holy catbirds, that is so wrong. Everybody knows that if you must go all out with a burger, the way to go is with a fried egg, pickle relish, cheese, onion, mayonnaise, etc.

Comparing the Hugh Finn and Terri Schiavo cases

The Washington Post has this article comparing the Hugh Finn and Terri Schiavo cases.

The principals from the Finn case say nobody has learned a thing in the past six years.

Mayor Wilder says $1 million plus in attorneys' fees per year for housing authority is too much

The Richmond paper reports here that Mayor Douglas Wilder thinks the Richmond Redevelopment and Housing Authority has overspent in paying attorneys in excess of $1 million per year.

Sometimes, you've just got to have a biscuit

The Kingsport paper reportshere that "the drunkest driver" the Police Chief in Mount Carmel "has seen in a long time" led law enforcement officers on an early morning "low speed" chase through town that ended when the suspect pulled up to the drive-thru window at Hardee's, where he planned to buy a biscuit.

Tuesday, March 22, 2005

Rocket Boy says ditch the shuttle

According to this post, Homer Hickam, the Rocket Boy, says the Space Shuttle ought to be scrapped.

My dad, the son of a coal miner and who became an engineer, thought the Rocket Boy books were great.

More on mountaintop mining litigation

The Charleston Gazette has this article on the positions taken and brief filed by the government in the appeal of the West Virginia mountaintop mining case.

The article begins:

"A federal judge overstepped his authority when he blocked the streamlined permitting of new mountaintop removal coal mines, the Bush administration says in a new legal brief."

Comparing state and federal criminal sentencing

This interesting article on sentencing from the Charlottesville paper has quotes from the Republican AG candidates and also notes that there are: "80,000 criminal prosecutions annually in federal courts versus 15 million in the 50 states."

New standing order on the handling of sealed documents in the W.D. Va.

Last week, the W.D. Va. entered a new standing order for the handling of sealed documents, which makes plain that the parties cannot seal documents in the Court by agreement or by marking them "sealed." Instead, advance permission to file documents under seal is more or less always required, at least for civil cases.

AG lacks authority to ban nonconforming cigarette seller from doing business in the Commonwealth

In Citland, Ltd. v. Commonwealth of Virginia, the Virginia Court of Appeals concluded that the tobacco statutes did not give the Attorney General's office the power to prohibit, on account of its failure to pay into the tobacco settlement, a small tobacco firm from doing business in Virginia.

On the retirement of Judge Stump

The Coalfield Progress has this article and this article on the retirement of Circuit Court Judge Robert Stump from Wise County.

The Roanoke paper takes on the Schiavo Act from Congress

In this editorial, the Roanoke paper holds forth on federalism, separation of powers, legislative protocol, family values, and all those things held most dear by the Roanoke paper, in opposition to the attempted legislative fix to the Schiavo case by Congress over the weekend.

On the effect of Booker in Virginia

The Charlottesville paper has this article about the effect of the Supreme Court's decision in Booker on federal cases in Western Virginia.

Sunday, March 20, 2005

Caught me peeping over the fence about the Schiavo case

It says here that only readers of liberal blogs know that former Texas Governor Bush signed a bill called the Texas Futile Care Law, and, among other things, "that this grandstanding by the congress is a purely political move designed to appease the religious right and that the legal maneuverings being employed would be anathema to any true small government conservative."

The CSM reports here this speculation on the Republicans:

"Their gamble is that the general public will be divided on the issue and will not vote on the subject come 2006, but that the Republican-base ... group of conservative Christians will remember this vote forever," says Larry Sabato, a political scientist at the University of Virginia in Charlottesville.

We may have to put another log on the fire up here at SW Virginia law blog headquarters, because hell has frozen over when I'm more in agreement with Congressmen Frank, Wexler, Nadler, Jackson-Lee, and Moran.

A Bashman reader says the Senate bill is probably unconstitutional because the parents cannot have standing.

What I would like to read from Howard or Matt or someone is - who are the federal district court judges who might get this case?

Recollecting the Hugh Finn case in Virginia

On March 9, 1995, Hugh Finn was injured in an automobile accident. As a result of the accident, he suffered severe brain damage and required continuous nursing home care, including artificially administered hydration and nutrition through feeding tubes....

In June 1998, Michele P. Finn, Hugh Finn's wife and legal guardian, determined that it would not have been her husband's wish that he be kept alive by artificial means, including the administration of hydration and nutrition, if there were no reasonable possibility of his recovering from a persistent vegetative state. Michele Finn then informed Hugh Finn's immediate family of her decision that pursuant to the provisions of the Virginia Health Care Decisions Act (the Act), Code § 54.1-2981 et seq., she intended to direct the medical staff at Annaburg Manor Nursing Home to withdraw this life-prolonging procedure from her husband.

A series of legal actions between the various members of Hugh Finn's family followed. These legal actions were emotionally difficult for the family, ultimately became the subject of public debate and, indeed, led to the involvement of the Governor of Virginia.

Several members of Hugh Finn's immediate family disagreed with Michele Finn's decision. John Finn, Hugh Finn's brother, filed a chancery suit in the Circuit Court of Prince William County (the trial court) seeking a permanent injunction to prohibit the withdrawal of hydration and nutrition from Hugh Finn and to remove Michele Finn as Hugh Finn's guardian (the John Finn lawsuit). On July 17, 1998, the trial court granted a temporary restraining order prohibiting Michele Finn from taking action to withdraw the life-prolonging procedure being administered to Hugh Finn. On July 29, 1998, the trial court held a hearing to consider John Finn's request for a permanent injunction and to remove Michele Finn as guardian. The trial court received testimony from Hugh Finn's neurologist, his physiatrist and Dr. Robin B. Merlino, his attending physician. The trial court found that the unanimous diagnosis of these three physicians provided "clear and convincing evidence that Hugh Finn has been and remains in a persistent vegetative state as defined in Va.Code § 54.1-2982, that can be characterized as a permanent vegetative state, meaning that, to a reasonable degree of medical probability, it is irreversible." The trial court further found that there was credible testimony from Michele Finn and in the de bene esse deposition of Kenneth L. Sales, Hugh Finn's attorney, that Hugh Finn had on "multiple occasions before his tragic accident" expressed that "he would not wish to have his life artificially prolonged with artificial life sustaining medical treatment, and that he would specifically wish to have [artificially administered] nutrition and hydration withdrawn if he were in a persistent or permanent vegetative state."

Addressing the provisions of the Act found in Code § 54.1-2986, the trial court found that Michele Finn had satisfied the requirement that she make "a good faith effort to ascertain the risks and benefits of and alternatives to the treatment and the religious beliefs and basic values of ... the patient receiving treatment." The trial court further found that it was " impossible to communicate with Hugh Finn as a result of the permanent vegetative state" and, thus, it was appropriate for Michele Finn to "base [ ] her decision on [her husband's] religious beliefs and basic values and [his] preferences previously expressed ... regarding such treatment." Based upon these findings, the trial court determined that "the termination of [Hugh Finn's] medical treatment ... including the withdrawal of [artificially administered] nutrition and hydration, is a medically appropriate, ethical treatment decision that is not inconsistent with Hugh Finn's personal wishes or his personal religious beliefs." Accordingly, the trial court concluded that John Finn had not satisfied his burden of demonstrating the likelihood of ultimately prevailing on the merits of a challenge to either the appropriateness of Michele Finn's decision or to her suitability as Hugh Finn's guardian. In an order dated August 31, 1998, the trial court denied John Finn's request for a permanent injunction, dissolved the temporary injunction issued in the July 17, 1998 order, and dismissed John Finn's petition to remove Michele Finn as Hugh Finn's guardian. Although granting Michele Finn authority to proceed with her decision to direct the withdrawal of Hugh Finn's artificially administered hydration and nutrition, the trial court stayed that authority for 21 days. The trial court further required John Finn to pay one-half of the fees for the guardian ad litem appointed for Hugh Finn, one-half of the fees for the expert witnesses, and one-half of the attorney's fees and costs incurred by Michele Finn in defending the suit.

During the period of the stay imposed on Michele Finn by the trial court, John Finn filed a motion for reconsideration. In that motion, he asserted that new evidence had been acquired to show that his brother was not in a persistent vegetative state. On September 21, 1998, the trial court held a hearing on that motion and reviewed the affidavit of Marie F. Saul, R.N., a utilization review nurse employed by the Commonwealth's Department of Medical Assistance Services. In that affidavit, Saul stated that while reviewing Hugh Finn's medical records, she attempted to communicate with him. After repeatedly saying "Hi" to him, Saul believed she heard him respond in a similar fashion. Saul further stated that she then persisted in attempting to communicate with Hugh Finn for over an hour, but received no further response, although she observed Hugh Finn "[s]moothing" his hair. Saul also testified at the hearing, essentially reiterating the statements in her affidavit. By proffer, the trial court received evidence from Michele Finn that the Commonwealth's Department of Health and Human Resources had conducted its own investigation of Hugh Finn's condition and that the Department's report concurred in the diagnosis of his treating physicians that Hugh Finn was in a persistent vegetative state. Michele Finn further proffered evidence that it was beyond the usual responsibility or training of a utilization review nurse, such as Saul, to make clinical observations or to report on the physical or medical condition of a patient. The evidence further showed that there had been no change in Hugh Finn's condition or in the diagnosis of that condition by his treating physicians since the entry of the August 31, 1998 order. The trial court found that Saul's affidavit and testimony did not constitute new evidence and, moreover, "did not contradict a finding that [Hugh Finn] is [ ] in a persistent vegetative state" as previously determined by that court. Accordingly, the trial court denied the motion for reconsideration. John Finn was ordered to pay the additional fees and costs arising from the hearing on his motion.

At various times following the July 29, 1998 hearing and continuing after the trial court's denial of John Finn's motion for reconsideration, agencies of the Commonwealth, apparently responding to requests from a relative of Hugh Finn and a member of the General Assembly of Virginia, made a series of investigative visits to Annaburg Manor Nursing Home to examine Hugh Finn. These visits were conducted without the knowledge of Michele Finn and contrary to her express instructions that access to her husband be limited to family members and medical staff. On September 20, 1998, twenty members of the General Assembly released an informal declaration "In the Matter of Hugh Finn" in which they asserted that "the provision of comfort care as well as food and water should not be denied patients where such removal will be the underlying cause of death." Under the aegis of the prior action filed by John Finn, Michele Finn filed a motion seeking an order to enjoin the Commonwealth from making further intrusions into her husband's privacy. The trial court conducted a hearing on Michele Finn's motion on September 25, 1998. At that hearing, the evidence showed that three physicians employed by the Commonwealth's Department of Health and Human Resources had examined Hugh Finn and determined that he was in a persistent vegetative state. The physicians had further stated in an interview with David Tucker, Administrator of Annaburg Manor Nursing Home, that removal of Hugh Finn's feeding tubes would have been warranted as much as a year and a half prior to the date of their examination. Additional evidence showed that the Commonwealth's physicians discounted Saul's report that Hugh Finn had actually responded to her efforts to communicate with him. The trial court sustained the Commonwealth's demurrer to Michele Finn's motion on the ground that the Commonwealth was not a party to the John Finn lawsuit. On September 28, 1998, Hugh Finn's family members who had opposed Michele Finn's decision to withdraw the life-prolonging procedure being administered to Hugh Finn agreed not to pursue further legal action. Accordingly, no appeal was taken from the judgment rendered in the John Finn lawsuit.

On September 30, 1998, James S. Gilmore, III, "acting in his official capacity [as Governor of the Commonwealth of Virginia] and in the name of the Commonwealth," filed a bill of complaint against Annaburg Manor Nursing Home, Dr. Merlino, and Michele Finn seeking a temporary restraining order and a permanent injunction to prohibit the respondents from withdrawing the administration of hydration and nutrition from Hugh Finn (the Governor's lawsuit). The Governor asserted in the bill of complaint that the suit was brought pursuant to Code § 2.1-49, which provides, in pertinent part, that "pursuant to his duty to protect or preserve the general welfare of the citizens of the Commonwealth, the Governor may institute any action, suit, motion or other proceeding on behalf of its citizens, in the name of the Commonwealth acting in its capacity as parens patriae, where he shall determine that existing legal procedures fail to adequately protect existing legal rights and interests of such citizens." In addition, it was asserted that the suit was brought pursuant to Code § 54.1-2986(E), which provides that: "On petition of any person to the circuit court of the county or city in which any patient resides or is located for whom treatment will be or is currently being provided, withheld or withdrawn pertinent to this article, the court may enjoin such action upon finding by a preponderance of the evidence that the action is not lawfully authorized by this article or by other state or federal law." (Emphasis added.)

The Governor, as pertinent to the present appeal, contended that Hugh Finn is "dependent upon the artificial administration of nutrition and hydration in order to survive" and that the withdrawal of this procedure "will initiate a process of dying which will cause Hugh Finn to die from starvation and/or dehydration." Accordingly, the Governor further contended that "the Virginia Health Care Decisions Act ... does not authorize the withholding of nutrition and hydration from Hugh Finn" because Code § 54.1-2990 expressly provides that "nothing in [the Act] shall be construed to condone, authorize or approve mercy killing or euthanasia, or to permit any affirmative or deliberate act or omission to end life other than to permit the natural process of dying." The Governor further contended that "[u]pon information and belief, Hugh Finn is not in a persistent vegetative state as defined under Code § 54.1-2982; however, even if Hugh Finn were in a persistent vegetative state, the Respondents would not be authorized under the Act ... to withhold or withdraw the administration of nutrition and/or hydration" from Hugh Finn.

On October 1, 1998, the trial court held a hearing on the Governor's request for a temporary restraining order. At that hearing, the Governor, represented by the Office of the Attorney General, conceded that there was no new evidence to present in support of the contention that Hugh Finn was not in a persistent vegetative state and relied solely on Saul's affidavit. The Governor contended, however, that Hugh Finn's medical condition was not dispositive inasmuch as the principal contention of the bill of complaint was that the withdrawal of hydration and nutrition under the circumstances of the case was prohibited by Code § 54.1-2990. Hugh Finn's guardian ad litem advised the trial court that there was new evidence in the form of a medical report prepared for the Department of Medical Assistance Services by Dr. Naurang S. Gill, which the guardian ad litem had obtained from the Office of the Attorney General. Dr. Gill's report confirmed the previous diagnoses of Hugh Finn's personal physicians and the physicians employed by the Department of Health and Human Resources that Hugh Finn "had been and remained in a persistent vegetative state." Dr. Gill further opined "that [Hugh Finn's] chances of any meaningful recovery ... are practically zero." On the day the hearing was held, the trial court denied the Governor's request for a temporary restraining order. In that order, the trial court reviewed the prior proceedings and its factual findings in the John Finn lawsuit and then reiterated its prior determination that Michele Finn had "full authority under the Act, to withhold and withdraw life-prolonging medical procedures," including the artificial administration of hydration and nutrition. Addressing the argument that Code § 54.1-2990 prohibited the withdrawal of hydration and nutrition, the trial court concluded that "a person in a persistent vegetative state is, as a matter of law, in the natural process of dying within the meaning of [Code § 54.1-2990] and ... the withholding and/or withdrawal of artificial nutrition or hydration from a person in a persistent vegetative state merely permits the natural process of dying and is not mercy killing or euthanasia with[in] the meaning of [Code § 54.1-2990]."

Pursuant to Code § 8.01-626, the Governor filed an emergency petition in this Court for review of the trial court's order. The Governor's sole assignment of error asserted that the denial of the motion for a temporary restraining order "was error, and was based on an erroneous interpretation of Va.Code § 54.1-2990." Without conceding that Hugh Finn was in a persistent vegetative state, the Governor argued for reversal of the trial court's order on the ground that a person in a persistent vegetative state is not in the "natural process of dying," but rather that the withdrawal of hydration and nutrition would "initiate a dying process not previously present." Thus, the Governor contended, as he had in the trial court, that a plain reading of Code § 54.1-2990 would prohibit the withdrawal of hydration and nutrition from a person not otherwise in the process of dying from some other disease or condition. The Governor further contended that even if this Court were unwilling to construe the statute in this manner, the failure to issue the temporary restraining order deprived the parties of the opportunity "to make [a] more deliberate investigation" of Hugh Finn's condition, "whatever that condition may be."

By order entered October 2, 1998, we denied the Governor's emergency petition for review. In that order, we held that the "withholding and/or withdrawal of artificial nutrition and hydration from ... a person in a persistent vegetative state[ ] merely permits the natural process of dying and is not mercy killing or euthanasia within the meaning of Code § 54.1-2990." Gilmore, et al. v. Annaburg Manor Nursing Home, et al., Order Denying Emergency Petition for Review (October 2, 1998). Hugh Finn subsequently died following the withdrawal of the life-prolonging procedure in question.

Gilmore v. Finn, 259 Va. 448, 453-60, 527 S.E.2d 426, 428-32 (2000).

The Appalachian roots of the House of the Rising Sun

Via Yahoo News, this news story chronicles the Appalachian roots of the House of the Rising Sun, and the current efforts to locate such a place in New Orleans.

The story says:

The first known recording of the song was made in 1937, when a music historian named Alan Lomax learned it from a miner's daughter in Kentucky. It was then known as the "Rising Sun Blues."

Good one, guys

Brian Patton and Sparkitup have linked to this page with a funny juxtaposition of photos of Bush and Kerry.

I suspect that within the next few months there might be a conference of SW Virginia bloggers and those two guys will be there.

When will Petersen decide

Shaula has this post explaining the dates when Chap Petersen will decide finally whether he is a candidate for re-election as delegate or for lieutenant governor.

She notes that Republicans held the seat for 20 years before Petersen was elected, and so if Petersen gives it up, it will be a fight to see which party takes it over.

Two websites on the Virginia Creeper Trail

Virginia Creeper Trail Club and are two good sites for information about the trail that runs from Abingdon to White Top.

My dad just bought himself a bike. He went to a bike store and said he wanted a bike for a grandfather who wanted to ride with his grandkids. They sold him a funky looking machine that he's anxious to try out. So, I expect that sooner or later we'll take a ride or two.