Saturday, April 16, 2005

The ABA ratings on the renominated appeals court candidates

Here are the ratings from the American Bar Association, including the court of appeals' candidates renominated by President Bush.

The ABA rates Judge Boyle as "well-qualified," and the majority rated William J. Haynes, II, as "well-qualified," while the minority concluded that he was only "qualified."

Another voice heard from on the Virginia governor's race

This SouthNow Blog post says, among other things: "Kaine will be the Democrats' first big test of the new 'red-state' strategy espoused by DNC Chairman Howard Dean."

More on the Fourth Circuit's decision in U.S. v. Washington

On reading this post from Professor Berman about U.S. v. Washington, it appears that the case presented a variation of the most interesting Apprendi issue there is, not that I exactly follow these matters, but that is the issue of when it is going to be declared unconstitutional for the judge to impose an enhanced sentence based on the prior criminal record of the defendant. The case deals with the sentencing enhancement for a "crime of violence." The majority held that the court's findings about the prior offense were not within the currently-recognized exception to Apprendi.

Tennessee Supreme Court drops the ball on Blakely issues?

A commenter to this Professor Berman about the Tennessee Supreme Court's attempts to distinguish Blakely in the Gomez case says the "majority opinion reads like it is from the Bizzaro universe."

This morning in Grundy I met a 3L who is going to clerk for Justice Birch. Justice Birch joined in the dissent by Justice Anderson in the Gomez case.

Notwithstanding the debate among the Virginia AG candidates over the sentencing guidelines, one good thing about what we have in Virginia - is no Blakely/Booker problem, so far as I understand these things. On this constitutional issue, it is conceivable that fiddling with the guidelines in ways that would provide for the imposition of enhanced sentences by judges would be a big step in the wrong direction.

More on the Chesterfield County invocation case

This Logos post contains a much more detailed and sensible analysis of the Fourth Circuit decision's in the Chesterfield County invocation case.

Unlike mine, it contains no Wizard of Oz links or references.

Bill Frist website on eliminating the filibuster on the stalled judicial nominations

Via How Appealing, I went to Senator Frist, M.D.'s anti-filibuster website, and never got past the UT football player pictured at the top. Who is it? Kelley Washington? How many games did he play? 17 in two years? Tee Martin (the QB on the national championship team) was No. 17. Why not put Tee on your web page, Senator?

I did however, read the whole of this fake news post, with the headline, CIA Says Senator Frist Lacks Nuclear Capability.

Suing sheriffs in their official capacity

According to this post, the law is all over the place in the 11th Circuit as to whether sheriffs can be sued in their official capacity, or whether they are viewed as the States, and therefore protected from money damages suits by the Eleventh Amendment.

In the Fourth Circuit, sheriffs sued in their official capacities are protected by the Eleventh Amendment in South Carolina (Cromer v. Brown, 88 F.3d 1315 (4th Cir. 1996); Gulledge v. Smart, 1989 WL 69302 (4th Cir.)), but perhaps not in North Carolina (Harter v. Vernon, 101 F.3d 334 (4th Cir. 1996)). The Virginia courts have generally in the more recent cases concluded that Virginia sheriffs are protected by the Eleventh Amendment. See Smith v. Fisher, 2002 WL 192563 (W.D. Va.); Harris v. Hayter, 970 F. Supp. 500 (W.D. Va. 1997); Blankenship v. Warren County, 918 F. Supp. 970 (W.D. Va. 1996); Williams-El v. Dunning, 816 F. Supp. 418 (E.D. Va. 1993); McCoy v. Chesapeake Correctional Center, 788 F. Supp. 890 (E.D. Va. 1992).

My secret plan to get on the federal appeals court

This ACS post describes the research done by Senator Lott's office, which concludes that dumb, obscure guys get confirmed to the federal appeals courts easier than those with lots of fancy qualifications.

Friday, April 15, 2005

Congressman Boucher makes the Honor Roll

In lists like this one, some Democrats are lamenting the fact that SW Virginia's own Congressman Boucher and thirty others Democratic representatives like him voted in favor of both the House bill that toughens up the bankruptcy laws and the House bill against the estate tax.

In the manner of a Civil War substitute, I go to Grundy

As a good deed toward Jack and Sylvia, I am filling in as a fake appellate court judge for some group of 1Ls in Grundy tomorrow, and the worthwhile part is that the issue in a vague sort of way makes me think of the Apple blogger case, about which here is the Bear Flag League brief.

Suppose - the bloggers paid somebody who went and stole Apple trade secrets, and because of the theft and disclosure on the blogs, Apple lost $1 million. If the blogger was merely negligent as to whether the thief would engage in his thievery, can the blogger be liable to Apple for causing the loss? That is sort of more like what is being mooted about in this case at ASL tomorrow, except also it is not about bloggers or Apple, as such.

Today's rant - the evils of auto-reply

I hate auto-reply. It is, in a word, SPAM - directed at your colleagues and paying clients, who are otherwise treated as the good guys. It is a declaration of non-service. Why would a lawyer want to send to his clients an e-mail that says I'm not helping you? Get someone to read the e-mail!

When I am gone, I access my e-mail from afar and/or before I leave, I make a list of the usual and unusual suspects, and implement an e-mail rule that forwards all the messages from them to my assistant and to our receptionist.

Fortunately, those on the forward list (which is saved, and never changes much) are the people for whom or with whom I actually do paying work, and so they are not going to send messages with pictures of the Swedish Bikini team (and if they did, I guess I'd have to charge them extra, after my assistant and/or the receptionist punched me in the nose).

Also, almost as an unrelated matter, I hate auto-replies that get on list servs. In the old days, it happened on a few lists I've seen, that every post would generate an auto-reply from some poor schmo who went on vacation. When he got back to Omaha, an angry mob of list serv-reading lawyers had flown in from every corner of the nation and joined in burning his office down to stop the escalating flow of auto-replies into their respective inboxes. (OK, that never really happened, but it was often proposed.)

AG candidate fundraising numbers

I was just reading some e-mails from the Baril campaign that say they raised more money in the first quarter than did the McDonnell campaign.

Now, if this difference was in part the result of some ban on fundraising during the General Assembly session, that applied to McDonnell and not to Baril, you'd think they would have disclosed that fact, but I can't seem to find that part in the e-mails.

Split decision on plain error in pre-Booker sentence

In U.S. v. Washington, Judges King and Duncan decided that Apprendi and Booker required the reversal and remand of the defendant's conviction and sentence, while Judge Luttig in a dissenting opinion asserted that an exception to Apprendi applied and as to Booker, the error, if any, in the defendant's guideline sentence was harmless and not enough to justify a reversal.

I'm not sure but what this is the first opinion from Judge Luttig on the effects of Booker.

U.S. Route 11 around 1920

This Big Salt Lick post includes a picture of Route 11 as it looked long ago.

Thursday, April 14, 2005

En banc Court of Appeals affirms conviction for obscene display, as opposed to exposure, by defendant who showed the victim a picture

In Moses v. Com., the Virginia Court of Appeals, sitting en banc, disagreed with the earlier panel decision and affirmed the criminal conviction for obscene display under Va. Code 18.2-387 of a criminal defendant who went up a pre-teen girl at a Walmart and showed her a dirty picture. Judge Benton wrote a dissenting opinion, joined by Chief Judge Fitzpatrick and Judge Elder.

John Whitehead of Rutherford Institute comes to Grundy

According to this press release, Paula Jones' other lawyer, the one AFTER Gil Davis, made a recent visit to the Appalachian School of Law, as a guest of their Federal Society and Christian Legal Society.

Dog cases in Virginia

The Washington Post has this story about what makes a dog dangerous under Virginia law.

I did once represent my sister's dogs Buck and Summer in dog court in Washington County. They were observed at the scene of a dead cow. The farmer would have shot them if he had been closer. Instead, they ran off, so the farmer took a warrant. My brother-in-law paid for the cow, we got a little release from the farmer, and Buck and Summer were put on good behavior. I think Summer was given away. The mellow dog Buck is still around, relocated with that family to Lee County. It was one of my best cases ever in general district court.

The case of the Cumberland Gap speeder

I've been cogitating over this opinion for a few days, and it appears that in U.S. v. Hall, that the defendant's arrest might have been illegal but even if it was, there was enough evidence separate and apart from whatever the guy said after he was arrested to support his conviction.

So, does that mean he can sue the arresting officer on some kind of Bivens claim? And, what could he get for it?

It is an interesting case involving a fellow who was spotted speeding through the tunnel in the national park at Cumberland Gap but was not arrested until another officer saw him in beautiful downtown Middlesboro, KY, outside the park service's domain.

Today's classic rant - the futility of the discovery letter

One of my pet peeves is the existence in the events list for electronic filing in the Western District of Virginia of an entry called the "discovery letter."

By "discovery letter," I mean simply the cover letter for written discovery requests, that gets sent to the Court without the enclosures sent to the parties. Under the Court’s standing orders, "discovery material" is not to be filed in most judges' cases. Similarly, under Rule 5(d) of the Federal Rules of Civil Procedure, specified discovery documents "must not" be filed. There is no provision for "discovery letters" (or any other letters) in the Rules.

Over the years I have argued, threatened, and pleaded with my co-workers and staff to not send any mail related to written discovery to the clerk’s office in federal court cases. With the advent of e-filing, however, the clerk’s office is encouraging people to e-file these discovery letters. I believe that the docketing of "discovery letters" conflicts with the reasons for non-filing of discovery material; does not match the way the Court handles other, similarly insignificant cover letters (which aren't even filed, mostly); and is not done in other courts (at least not the ones for which I have e-filing passwords). These "discovery letters" contain no information of use to the Court. Instead of requiring lawyers to add these letters to the online docket, the Court should be discouraging the lawyers from sending out such letters at all.

I last ranted on this subject in August 2004, and it has been building up again, so I thought I would let it out.

Fourth Circuit throws water on the Chesterfield County witch

In Simpson v. Chesterfield County Board of Supervisors, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judge Williams and Judge Niemeyer, and with a separate concurring opinion by Judge Niemeyer, held for the County in the witch/plaintiff's Establishment Clause challenge to her exclusion from the list of people who can lead the opening prayer at Board of Supervisors' meetings - I mean, the "non-sectarian invocation."

There was no account given in the opinion of the substance of these invocations.

The Chesterfield County Attorneys' office must be an interesting place to work.

Unrelated to Chesterfield County, the scene from the Wizard of Oz in which the Wicked Witch got doused can be seen and heard here.

Deal would use VDOT rights-of-way for fiber-optic lines in rural Virginia

The Roanoke paper has this report on a deal that would allow the installation of fiber-optic telecommunications lines within the VDOT's rights-of-way in parts of Virginia.

Judge grants a view in the Nelson County hunting rights case

In this report, the Roanoke paper explains that the trial court judge will view the premises in the land use case in Nelson County that has become a celebrated gun rights case.

Fourth Circuit approves DirecTV civil actions under federal wiretap statutes

In DirecTV Inc. v. Nicholas, the Fourth Circuit in an opinion by Senior Judge Hamilton, joined by Judges Widener and Shedd, reversed District Judge Boyle and ruled that DirecTV could bring civil claims based on 18 U.S.C. 2511 and 18 U.S.C. 2520, based on the "plain language" of the Code sections.

Wednesday, April 13, 2005

Roanoke paper adds anti-Big Coal writer to editorial board?

This post from the Salt Lick says the new guy on the editorial staff at the Roanoke paper is a liberal, and when he worked in West Virginia, he most wrote stuff like this:

"When a coal company throws a miner out of work for purely economic considerations, everyone accepts it. But when a federal judge decides that societal good is served by delaying a mine permit for several months to sort out whether the permits are legal, he is demonized by the coal industry and the miners union."

Tuesday, April 12, 2005

Can a small firm lawyer be AG?

In reply to SST, I wrote this:

I can't say that it's true that small firm lawyers are unqualified to be AG. I would argue that there have been no big firm lawyers who have been elected AG, although some of them (Miller, Baliles, Gilmore) became big firm lawyers afterwards. (I think of Kilgore as a SW Virginia lawyer.) The last big firm nominee, Dolan, lost in part because Gilmore ran ads claiming that Dolan "botched" his only criminal prosecution. Criminal law experience might count more with voters.

I would want the AG to be a good lawyer, but there are all kinds of lawyers. The big firm litigators are more likely to be involved in interesting, complex civil matters involving big businesses. The smaller firm lawyers are closer to the ground, representing more people and smaller businesses. Even those generalizations have their limits.

Here's an awkward example: you can get on Westlaw and see how many times a lawyer's name is on there associated with the opinions in the database for the state and federal courts in Virginia. Baril's name is there 26 times, McDonnell's name is there 3 times, and mine is there 44 times. Who is most qualified to be AG? Not I.

Besides, the AG is more than a lawyer. No lawyer in private practice will learn all the substantive areas of the law touched by the workings of the AG's office - there's too much to know. And, he doesn't have to know it - the AG has hundreds of lawyers working under him. The selection of AG is more like hiring a coach than picking a quarterback.

And so, the more important difference between candidates might be their ideas. The AG gets to choose the legal position of the Commonwealth on many kinds of legal matters, including disputed social issues. The AG also has a role in the shaping the justice system for all Virginians. It is interesting to me to learn what priorities and perspectives the different candidates bring to those tasks.

Last night's Baril-McDonnell debate

This account in the Washington Post about last night's debate between the Republican candidates for attorney general makes it sound like the debate was very interesting.

I don't understand why Baril is muddying the waters by talking about his plan for transportation. He might have the greatest plan in the world, but it doesn't seem relevant to the office he is seeking, and wasting time on it detracts from his other qualifications from the job and makes it appear that he is rehearsing slogans for a gubernatorial campaign.

One good point Baril made was to call out McDonnell for the activities of the House Courts of Justice committee in dealing with judges up for reappointment during Del. McDonnell's watch. Some strange things have happened, the strangest being the matter of former Judge Askew from Newport News.

Justice Carrico and deference to the legislature

As I have recently read Virginia Hasn't Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Mildred Loving, it gave me occasion to read the Virginia Supreme Court opinion in the Loving case, written by Justice Carrico.

In that opinion, Justice Carrico applied the Court's earlier opinion in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749 (1955), and refused to recognize that the U.S. Supreme Court's intervening decision in McLaughlin v. State of Florida, 379 U.S. 184 (1964), justified a different course. Loving v. Com., 206 Va. 924, 147 S.E.2d 78 (1966). Rejecting the policy arguments of the appellants, Justice Carrico wrote:

"A decision by this court reversing the Naim case upon consideration of the opinions of such text writers would be judicial legislation in the rawest sense of that term. Such arguments are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate."

Justice Carrico joined in the dissent in the case of Lockhart v. Commonwealth Educ. Systems Corp., 247 Va. 98, 439 S.E.2d 328 (1998). In his dissent, Justice Compton explained that the majority had bypassed the statutory prohibition in then-Va. Code 2.1-725 against new causes of action based on the public policy of the Virginia Human Rights Act.

I compare these opinions with the analysis of the Court in Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005). Although not cited in Martin, the Court had recently applied the fornication statutes, in Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (2000), where the Court found that those statutes provided independent basis in public policy for the plaintiff's wrongful discharge claim, thereby avoiding the limitations of the amended section 2.1-725. In Mitchem, again with Justice Carrico joining in the dissent, the Court characterized the fornication statutes as among the "[l]aws that do not expressly state a public policy, but were enacted to protect the property rights, personal freedoms, health, safety, or welfare of the general public," on which a wrongful discharge claim could be based. After the intervening decision by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), however, the same Court was willing in Martin to conclude that the fornication statute was irrational, and therefore unconstitutional. I suspect that Justice Carrico would have dissented in Martin, as well.

New York City!

I might be making a trip in the near future to New York City.

Coincidentally, I just read Downtown - My Manhattan by Pete Hamill, an excellent book. Hamill knows lower Manhattan better than I know Piedmont Avenue.

I did, however, once take my nephew's home-made version of Flat Stanley on a tour of Abingdon. Sometime later, I took the nephew on the same tour. He wanted to look for wolves in the cave behind the Cave House.

Monday, April 11, 2005

More on opposition to confirmation of Judge Boyle to the Fourth Circuit

The AP has this report that begins: "Black leaders urged the U.S. Senate to reject the nomination of U.S. District Judge Terrence Boyle to a federal appeals court seat, saying his hostility to civil rights and high rate of reversal makes him unfit for the job."

The article quotes Congressman Mel Watt, the chairman of the Congressional Black Caucus. I like Mel Watt because of his stories about growing up in North Carolina, some of which are told here in a rough transcript of an interview on C-SPAN.

Xeni is from Richmond?

Blogmistress extraordinaire Xeni Jardin of Boing Boing fame is originally from Richmond, right here in the Commonwealth, according to this profile reprinted from the LA Times. Now, who'd have thunk that?

One good thing about Crohn's disease

Just now I was reading the current issue of Digestive Health & Nutrition magazine, and one of the columnists suggested (once again) that persons with Crohn's might try Flintstones Chewables.

So, I do. Whenever I go see some new doctor and fill out the list of medicines I take, I put down "Flintstones Chewables." And, it always gets a laugh.

What better way to start the day, than by eating a pet dinosaur who tastes like candy?

On paying for spousal abuse and adultery in Tennessee

The Kingsport paper reports here on proposals before the current session of the Tennessee legislature to increase the financial cost in divorce proceedings of one party's adultery.

Photoblogging Tennessee courthouses (and one outhouse)

Via Tennessee's own Instapundit, I see this collection of Tennessee courthouse photos.

Sunday, April 10, 2005

Tiger, Tiger, Tiger, Tiger

I guess my golf-watching makes me a bit of a couch potato, but after watching the thrilling back nine of the final round of the Masters, I think I need a shower.

Supposedly my wife's sister's husband was there at Augusta National today, lucky dog.

The Hatfield and McCoy Marathon

This delightful article describes, among other things, 2004 running of the Hatfield and McCoy marathon - check it out.

Voice from the past

Do my ears deceive me or are some of the ads and intros for the Masters broadcast done by Pat Summerall?

Indeed, it says here: "The voice of Pat Summerall will be part of the Masters' television coverage."

Jim Nantz and Lanny Wadkins have got nothing on Pat Summerall and Ken Venturi - as they would themselves agree.

Who is an idea lawyer?

I read with interest this Georgia lawyer post on the idea of an "idea lawyer."

Pink jerseys out, Elton John-style unis in

It says here that the University of Arkansas has stopped using pink jerseys for spring practice slackers, but in this post, it is said that the new uniforms for the Clemson Tigers "look like something Elton John might wear if he put on the pads."

Lynchburg's new federal courthouse opens April 25

The Lynchburg paper is reporting: Debut nears for new federal courthouse.

Varsity Hall gets moved to make way for new Comm School building

For a couple of years, I lived on Brandon Avenue in Charlottesville, with a gang the last year including three AFROTC guys. So, I've walked around Varsity Hall many times and even may have been in it a few times (in what I'm sure was some kind of breach of military regulations). So, it seems like a remarkable thing to me that the 150 year-old building has been moved, according to this story in the Daily Progress.

Chief Judge Jones approves agreed sentence, notwithstanding government's about-face

In U.S. v. Bundy, the defendant entered a guilty plea, the government argued for a sentence at the upper end of the guidelines, the trial court agreed, and the defendant appealed. The Fourth Circuit reversed and the case was remanded. On remand, the government approved a deal that would limit the defendant's jail time to the 16 months served, and on reflection, Judge Jones agreed, "notwithstanding the government's dramatic about-face."

Two ways not to get attorneys' fees under section 1988

In State of Tennessee v. City of Chattanooga, the Sixth Circuit held that there was no section 1983 remedy, and thus no statutory attorney fees under section 1988, for the City's violation of the federal Telecommunications Act of 1996, citing the U.S. Supreme Court's recent decision in City of Rancho Palos Verdes v. Abrams, another tower-siting case.

Somewhat similarly, in Virginia Office for Protection and Advocacy v. Reinhard, the Fourth Circuit in an opinion Chief Judge Wilkins, joined by Judges Niemeyer and District Judge Wilson, concluded that on the claim under the Protection and Advocacy for Mentally Ill Individuals Act of 1986 against the defendant in his official capacity there was no proper section 1983 claim because the plaintiff Office was not a person under section 1983 and therefore there could be no attorneys' fee award under section 1988. (In the Sixth Circuit's case, the actual use plaintiff was a private outfit, and so the issue of the state as a section 1983 plaintiff evidently did not come into play.)

On the face of it, I would have thought that not only was there no proper plaintiff, there also was no proper section 1983 defendant, since in the Will case, among others, that neither States nor state officials acting in their official capacities are "persons" within meaning of 1983. Perhaps I am missing something, since that aspect was apparently not discussed.

What these cases have in common are plaintiffs bringing claims to enforce federal rights who tried but failed to also make out section 1983 claims, without which they had no statutory right to attorney fees.

Punitive damages reduced in First Amendment retaliation case

The Norfolk paper reports here on a decision by the federal magistrate judge in a section 1983 case to reduce the award of punitive damages against two Virginia Beach school officials.

The issue had something to do with whether there was evidence of the defendants' net worth.

The case I typically cite on this issue, in trying to explain the law to people, is the Joe Morgan airport case, Morgan v. Woessner, 997 F.2d 124 (9th Cir. 1993). Joe Morgan, the baseball Hall-of-Famer and broadcaster, got arrested at an airport, and sued under section 1983 and California law, and won. In fact, he got $300,000 in punitive damages on the federal law claim, and $150,000 in punitive damages on the state law claim, and both were appealed. California law requires evidence of the defendant's net worth to support a punitive damages claim, and so the state law punitive award was reversed. Under the federal law, by contrast, the inability to pay is viewed as more of a defense to punitive damages, and so the plaintiff has no burden to prove the defendant's net worth to get punitive damage under section 1983.

In Kemezy v. Peters, 79 F.3d 33 (7th Cir. 1996), Judge Posner explains: "The usual practice with respect to fines is not to proportion the fine to the defendant's wealth, but to allow him to argue that the fine should be waived or lowered because he cannot possibly pay it. . . . Given the close relation between fines and punitive damages, this is the proper approach to punitive damages as well. The defendant who cannot pay a large award of punitive damages can point this out to the jury so that they will not waste their time and that of the bankruptcy courts by awarding an amount that exceeds his ability to pay." 79 F.3d at 36.

I'm not entirely sure how the foregoing analysis squares with the ruling of the magistrate judge in the Virginia Beach case.

More on evaluating Virginia judges

Alan Cooper of the Richmond paper has this report ("Weighing Va. judges in the balance," 4/10/05) with more information about the new system for evaluations of Virginia's judges, including feedback from the judges in the pilot program on the feedback about themselves.

How to read the Kingsport paper by RSS

An editor from the Times-News explains here how to use the brand spanking new RSS feed for the Kingsport paper. Well done, I say.

The Kingsport paper's RSS feed is here.

On red light cameras in Virginia and elsewhere

Virginia is not alone in doing away with red light cameras, according to this SoCalPundit post.