Thursday, July 07, 2005

Another candidate from the Fourth Circuit for the Supreme Court

It says here that Sen. Graham from SC is talking up Chief Judge Wilkins for the Supreme Court.

So, Luttig, Wilkinson, Williams, Wilkins - let me throw in Judge Widener as a candidate. The Democrats wouldn't know what to make of a Supreme Court nominee who rolls his own cigarettes (or used to).

On the case of the parents who gave beer to under-aged drinkers, now before the en banc VCA

The Hook has this story on the Robinson case, where the couple have gotten really nailed for giving alcohol to minors, and claim that the cops should not have come up in their driveway and looked around to see what was going on, thereby spotting the underaged drinkers in action.

Wednesday, July 06, 2005

On jury instructions and qualified immunity

In Willingham v. Crooke, the Fourth Circuit in an interesting opinion by Chief Judge Wilkins held that the trial court erred in instructing the jury on the legal question of whether, on the facts found by the jury, the defendant was entitled to qualified immunity in a case brought under 42 U.S.C. § 1983.

Earlier, the District Court had granted the defendant's motion for summary judgment based on qualified immunity, and the court of appeals reversed, concluding that there was a question of fact as to whether the plaintiff had obstructed the defendant officers in their search. The plaintiff was charged with obstruction of justice, which is sometimes the catch-all statute in the Commonwealth for being a wise guy to the police. On remand, the trial court in its instructions gave the entirety of the qualified immunity issue to the jury, asking not only for the jury to determine what happened, but also for the jury to determine under those facts whether the defendants' conduct was reasonable "in light of the legal rules clearly established at the time of the incident."

On appeal, the Court first rejected the plaintiff's argument that the defendants had no qualified immunity defense after the earlier decision on appeal. The Court explained that the jury was not required to view the facts in the light most favorable to the plaintiff, and the Court in its earlier decision had not decided whether a reasonable officer would have known that his actions were unlawful under any and all versions of the facts.

Secondly, the Court agreed with the plaintiff's argument that the trial court went to far in presenting the issue to the jury. The Court explained that the existence of factual disputes does not mean that the jury gets to decide the essentially legal question of qualified immunity. Rather, the task of the jury is to resolve the factual disputes, leaving to the trial court the decision as to whether on the facts found by the jury the defendant is entitled to qualified immunity.

Several years ago, in article on qualified immunity, I wrote: "Qualified immunity ought to be determined long before trial, but where it is not, it remains an issue at trial. The court must define what is the clearly-established law. The jury with proper instructions and interrogatories should do no more than to decide the necessary facts. After the jury has determined disputed facts, qualified immunity remains an issue of law for the court to decide."

Citing many cases, the Court wrote: "The issue having now come before us, we hold that the legal question of a defendant’s entitlement to qualified immunity under a particular set of facts should be decided by the court, not by the jury. See Littrell v. Franklin, 388 F.3d 578, 584-86 (8th Cir. 2004); Swain v. Spinney, 17 F.3d 1, 9-10 & n.3 (1st Cir. 1997); Cottrell v. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir. 1996); Warlick v. Cross, 969 F.2d 303, 305 (7th Cir. 1992). But see Oliveira v. Mayer, 23 F.3d 642, 649-50 (2d Cir. 1994) (holding that the district court erred in failing to submit the question of reasonableness to the jury); but cf. Curley v. Klem, 298 F.3d 271, 278-79 (3d Cir. 2002) (holding that once disputed factual questions are resolved, the question of the reasonableness of an officer’s actions may be decided either by the jury or by the court); but cf. also Maestas v. Lujan, 351 F.3d 1001, 1008-10 (10th Cir. 2003) (holding that the jury may decide the question of reasonableness if disputed facts are dispositive of that question); Fisher v. City of Memphis, 234 F.3d 312, 317 (6th Cir. 2000) (similar); Snyder v. Trepagnier, 142 F.3d 791, 799-800 (5th Cir. 1998) (similar), cert. granted, 525 U.S. 1098 (1999), cert. dismissed, 526 U.S. 1083 (1999)."

An interesting question not discussed in this case is - who has the burden of proof as to what happened. The instruction given by the trial court seemed to indicate that the burden was on the plaintiff to show facts that would prove the defendants were not entitled to qualified immunity. The instruction read in part: "If after considering the scope of discretion and responsibility generally given to police officers in the performance of their duties and after considering all of the surrounding circumstances of the case as they would have reasonably appeared at the time of the arrest you find from a preponderance of the evidence that Ms. Willingham has proved that [Sergeant] Crooke knowingly violated the law regarding Ms. Willingham’s constitutional rights, you must find for Ms. Willingham."

I still think, notwithstanding the language of a number of Fourth Circuit opinions, that it is at least an open question as to whether the plaintiff and not the defendant has the burden of proof, as a number of other circuits have so held, at different times. See Garretson v. City of Madison Heights, 407 F.3d 789, 798 (6th Cir. 2005) ("Garretson bears the ultimate burden of proof to show that the individual officers are not entitled to qualified immunity"); Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002) ("Once the defendant establishes that he was acting within his discretionary authority, the burden shifts to the plaintiff to show that qualified immunity is not appropriate"); Bazan ex rel. Bazan v. Hidalgo County, 246 F.3d 481, 489 (5th Cir. 2001) ("The defendant official must initially plead his good faith and establish that he was acting within the scope of his discretionary authority. Once the defendant has done so, the burden shifts to the plaintiff to rebut this defense by establishing that the official's allegedly wrongful conduct violated clearly established law."); Erwin v. Daley, 92 F.3d 521, 525 (7th Cir. 1996) (“Once a public official raises the defense of qualified immunity, the plaintiff bears the burden of proof on the issue”); Lenz v. Dewey, 64 F.3d 547, 550 (10th Cir. 1995) (“Once a defendant asserts qualified immunity, the plaintiff bears the burden of proving that the defendants violated a law that was clearly established”).

The last time I checked, the Supreme Court had not squarely addressed the issue. See Gomez v. Toledo, 446 U.S. 635, 642 (1980) (Justice Rehnquist reads the opinion “to leave open the issue of the burden of persuasion, as opposed to the burden of pleading”); see also Davis v. Scherer, 468 U.S. 183, 190 (1984) (“defendants who violate constitutional rights enjoy a qualified immunity that protects them from liability for damages unless it is further demonstrated that their conduct was unreasonable under the applicable standard”).

On the state of DNA evidence in the Commonwealth

This Style Weekly article takes on the good and the bad of the Virginia experience with DNA evidence.

This one will generate a few Google hits

In White Tail Park, Inc. v. Stroube, the Fourth Circuit in an opinion by Judge Traxler reversed the District Court on the question fo whether the American Association for Nude Recreation has standing to challenge the new Virginia law prohibiting licensure of nudist camps for juveniles attending without their parents.

In the 2004, the General Assembly amended Va. Code § 35.1-18, to prohibit licenses for nudist camps for juveniles. The American Association for Nude Recreation held such a camp in Virginia in 2003 and planned another for 2004. The Association sued for a declaration that the new law violated their constitutional rights to privacy and freedom of association under the First Amendment. After its motion for preliminary injunction was denied, the Association dropped its plans for a camp in Virginia during 2004. Because the Association moved its 2004 camp to another state, the District Court dismissed the Association’s claims both on grounds of mootness and lack of standing.

On standing, the Association claimed injury to itself as an organization, and did not rely on injuries to its members. It asserted that the prohibition against camps for young people only would reduce the size of the audience for its message of social nudism and this reduction will continue so long as the law remains in effect. While District Court rejected this consequence as de minimis, Judge Traxler disagreed, concluding that a state law that reduces the size of a speaker’s audience can constitute an invasion of a legally protected interest.

Tuesday, July 05, 2005

On the new law regarding guns on school property

The Richmond paper has this article on the debate about the new Virginia law dealing with guns in cars on school property.

The article says:

"A state law that took effect Friday allows people with concealed-weapon permits to have a loaded, concealed gun in their cars on school property, as long as the person carrying the gun doesn't leave the vehicle."

Southern Appeal picks up on Judge Karen Williams

In this post, William of Southern Appeal bangs the drum for Judge Karen Williams of the Fourth Circuit as another candidate for the Supreme Court.

The first female partner at Hunton & Williams

The Richmond paper has the story of Virginia Hackney.

Fun election story

Christina Nuchols of the Norfolk paper wrote this story on the 2005 governor's election, which begins:

"Virginia will choose a new governor this year, but voters in the Old Dominion might well wonder whether they are being asked to pick the next sheriff of Tombstone."

She also quotes John T. Hazel:

"The far right and far left manage to haul out these social issues that don’t amount to a hill of beans."

In case you're wondering about Del. Marshall's take on the Supreme Court vacancy

AFP has this quote: "Virginia voters need to know well before Nov. 8 what their governor or lieutenant governor would do if a new Supreme Court majority ruled that Virginia could once again ban abortion from conception to live birth as it did under statutory law from 1847 to 1969."

Monday, July 04, 2005

Matriculated his way down the field

The NY Times reports here and reports here that Hank Stram has died. I listened to him broadcasting football with Jack Buck many times, and I've seen the NFL Films version of Super Bowl IV many times. He was delightful, in his dress and commentary, whether he meant to be or not. Here is an excellent column from the time of Stram's admission to the NFL Hall of Fame. Hank Stram quotations can be found here, here, and here. Billy Bob Thornton, the recent movie football coach, said this: "My favorite thing to watch on television sports is when they do the NFL films, when they do those and they mic’d the coaches from the 60s and 70s. Hank Stram was my boy. I had to get at least one line in there, in this movie, that was kind of a Hank Stram-like line."

Also, my dad's company used to have a salesman who looked like Hank Stram, or so I thought. We have talked about the guy who looked like Hank Stram for at least 30 years.

I imagine my handful of friends, near and far, who were in Kansas City around 1970 will be flying the flag low tomorrow. So would I, if I had a Chiefs flag.

Another Gang of 14 article

Tomorrow's CSM has this article, which somewhat likely the Post article cited earlier indicates that the Democratic senators who make a difference on the Supreme Court nominee are Robert Byrd of West Virginia, Joseph Lieberman of Connecticut, Ben Nelson of Nebraska, Mary Landrieu of Louisiana, Daniel Inouye of Hawaii, Mark Pryor of Arkansas, and Ken Salazar of Colorado - and not anyone from New York, or anyone running for President, or anyone who was on TV on Sunday (so far as I know). If the deal works out as these articles suggest (to my reading of them), it was a better deal than it appeared.

Taking a second look for oil in Appalachia

This AP story says the government and a group of energy companies are looking at the feasibility of drilling deeper under the Appalachian foothills to find more oil in America.

A Williamsburg lawyer

This obituary tells of Williamsburg's Vernon Geddy, Jr., described as "to the manner born." Among other things, it asks the question, "How many recent law school graduates inherit John D. Rockefeller for a client?" sells Virginia Tech sports photos, as described in this Roanoke Times article, which makes me think I might ought to rethink that last post.

The Byrds

This interesting Winchester Star story (registration required) chronicles the history of the Byrd family and the 70+ years that Harry F. Byrd, Jr., now age 90, has been affiliated with the newspaper.

Among other things, it says that Senator Byrd comes to the paper most days and regularly reads seven different dailies.

Still crazy about No. 6

This old photo from CNN/SI Posted by Picasa is of Thomas Jones.

The Jones brothers, Thomas and Julius, had an event in Wise County last week.

Thomas Jones is still my wife's favorite to have played for U.Va. - mine, too. I think what he needs in the NFL is - his old number.

Margaret Edds' take on the scheduled execution of Robin Lovitt

In this commentary by Margaret Edds of the Norfolk paper, she questions the sufficiency of the evidence to support the capital murder conviction of Robin Lovitt, who is scheduled to be put to death on July 11. Lovitt was convicted and sentenced in Arlington County, not some conservative, rural jurisdiction. Ms. Edds explains: "At issue is whether it’s proper to execute a man, one who proclaims his innocence, even though a clerk mistakenly destroyed evidence in the case."

Lovitt was represented without success before the Fourth Circuit by Ken Starr. In Lovitt v. True, the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Williams and Traxler, rejected Lovitt's post-conviction claims, with this introduction:

"Robin Lovitt was convicted and sentenced to death for the murder of his former co-worker during the commission of a robbery. His challenges to his conviction and sentence — under Strickland, Brady, and Youngblood — have been heard by many courts. The Supreme Court of Virginia rendered two thorough and conscientious opinions in his case — one on direct appeal and one on habeas. The state habeas court in Arlington also treated Lovitt’s claims with care, holding a two-day evidentiary hearing and authoring detailed findings of fact and conclusions of law. Finally, the federal district court again reviewed Lovitt’s claims, and dismissed them in a meticulous and lengthy opinion.

This case is a good example of the care with which state courts should treat capital cases. We think the Virginia Supreme Court properly resolved Lovitt’s claims. Even if that were not the case, however, we could not begin to say that it unreasonably applied clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1) (2000). In so concluding, we affirm the judgment of the district court dismissing the petition."

For the earlier proceedings, see Lovitt v. Com., 260 Va. 497, 537 S.E.2d 866 (2000), cert. denied, 534 U.S. 815 (2001); Lovitt v. Warden, 266 Va. 216, 585 S.E.2d 801 (2003); Lovitt v. True, 330 F. Supp.2d 603 (E.D. Va. 2004) (Hudson, J.).

Evidently, the Virginian-Pilot editorialists, old and new, are not in sync on this case.

UPDATE: John Whitehead of the Rutherford Institute has this commentary urging the commutation of Lovitt's sentence.

Mennonite takes on the Pledge in Virginia

In Devoted to God, but Not the Pledge, in today's Washington Post, Rosalind Helderman profiles Edward R. Myers, the plaintiff in the court challenge to the use of the Pledge of Allegiance in Virginia schools, now pending before the Fourth Circuit.

Reaping the yield of the filibuster deal

If, as suggested in this Washington Post story, the filibuster deal means no filibuster for the President's Supreme Court nominees, then every conservative critic of the deal owes seven Republican senators a big apology.

The article says:

"The pact, signed by seven Democrats and seven Republicans, says a judicial nominee will be filibustered only under 'extraordinary circumstances.' Key members of the group said yesterday that a nominee's philosophical views cannot amount to 'extraordinary circumstances' and that therefore a filibuster can be justified only on questions of personal ethics or character."

Still looking for coal miners

Today's Richmond paper has this story describing the mad rush by employers in the coal business to recruit people to work while the getting is good.

The article says, in part:

"Mike Quillen, Alpha Natural Resources' president and CEO, guessed his company would hire roughly 600 miners over the next three years, about half of them to work in new mines and the rest to replace retirees."

Yesterday, the paper ran this article titled "At last - coal is back."

Sunday, July 03, 2005

NLRA does not necessarily preempt state law wrongful discharge claim

In Lontz v. Tharp, the Fourth Circuit in an opinion by Judge Wilkinson joined by Judges Luttig and Traxler held that the plaintiff's state law wrongful discharge claim was not preempted by the National Labor Relations Act, where she claimed in essence that she was in retaliation for union-organizing activity. The case was filed in state court, and removed based on total NLRA preemption. In reversing, the Court reasoned that there was either the NLRB had exclusive jurisdiction, or would allow a state law claim, but in either event there was no jurisdiction in the district court, and so left the preemption defense to be decided on remand in state court.

Will President Bush appoint a woman to replace Justice O'Connor?

Professor Bainbridge posts here on Judge Edith Jones of the Fifth Circuit.

This story from the State in South Carolina suggests Judge Karen Williams of the Fourth Circuit. UPDATE: So does this story from the Times & Democrat.

I like Judge Williams, since she voted for my side in a couple of cases, and everything I've ever seen or heard of her is to the good.

I can't say, however, that I am on a first-name basis with her or any of the court of appeals judges. Here's a typical, verbatim exchange from Saturday morning at the Homestead:

Judge Williams (apparently walking back from somewhere as my wife and I go to breakfast): "Good morning, good morning."
Me (at the top of my game): "Gmm."
My wife (as we keep walking): "Who was that?"
Me: "That was one of the judges."
My wife: "She looks awfully fit."

But what is a centrist?

The Daily Press reports that Senator Warner urges Bush to choose centrist. Who are the centrists? Judge Wilkinson? Alberto Gonzalez? David Souter?

Why we didn't stop at any of the mountain overlooks going up to the Homestead

The MG papers have this account of a couple and their dog who pulled over to see the view from Afton Mountain but kept on going.

Summarizing the 2004-2005 Term

Here is the LII's summary of the decisions of the Supreme Court in this past term.

On Saturday, I listened to the panel discussion including Walter Dellinger, Marci Hamilton, John McGinnis, and Stephen Salzburg at the judicial conference. One of the panelists stole a line from Jon Stewart, that it seems re: the Ten Commandments - "if it's on the wall, it's illegal; if it's on the grass, it's legal" - which prompted Professor Howard to quip that now the secret is out, law professors get educated from late night TV.

The new Virginia laws that took effect July 1

Here is the Norfolk paper's list of new Virginia laws, in effect since July 1.

The Washington Post reports here that groceries will cost less and cigarettes will cost more.

Crimlaw has this post with the new crim laws.

This article discusses the changes to the law and procedure of medical malpractice claims in Virginia.

The Bristol paper had this article on Virginia's new underage drinking laws.

Cheating at the University?

This article begins: "An 'alarmingly large fraction' of the first-year class of economics graduate students at the University of Virginia were involved in a cheating incident that came to light this month, according to the department chair."

What is said to have happened is this:

"Department officials said that some problem sets from textbooks used in introductory graduate economics courses have answer keys online. At least one student found answers for a course taken by all first-year students, and apparently shared the information with classmates."

The last horseman

Thursday's Norfolk paper had this light-hearted tale of a Virginia judge who rode to his last day of work on horseback.

More on the Nelson County sporting case

Thursday's Charlottesville paper had this report on the circuit's ruling in the Orion case.

I had wondered whether the constitutional argument was a bit of a red-herring in the case, but it makes me recall one of my favorite legal arguments.

In Virginia law, there is or was a statute limiting the liability of landowners to persons who come on their land for purposes of "hunting." Supposedly, one of my old bosses won a case where the plaintiff had been "hunting" for ginseng. You can imagine the examination. "So, you were hunting for ginseng?" "You had heard there was ginseng there, and you were hunting for it?" etc. I'm not sure how that outcome, despite its ingenuity, squares with the concept of "hunting" applied in the Nelson County case.