Saturday, January 28, 2006

Virginia trial lawyer on a bike

This article about indoor bike "travel" includes a few words and a picture of Richmond lawyer Colleen Quinn.

It says in part:

"Colleen Quinn, a trial lawyer in Richmond, has been experimenting with rides to out-of-the-way places for years as a cycling instructor for the Westwood Club and more recently, the James Center YMCA.

Quinn, who is a scuba diver with some travel experience, says she generally takes her classes somewhere exotic."

That Johnson City lawyer gets license suspension

The Kingsport paper reports here:

"The Tennessee Supreme Court has suspended a local attorney's license, prohibiting him from practicing across the state. . . .

This involves the same fellow who was held in contempt of court after he "allegedly encouraged a client to lie in an e-mail," and who has now sued those judges for $23.4 million.

Friday, January 27, 2006

$5 million verdict for AOL against spammer in the E.D. Va.

This story from Yahoo says that America Online has won a $5 million verdict against a spammer from Minnesota in a case before Judge Claude Hilton of the Eastern District of Virginia.

Is it unethical for a lawyer to advertise services as "cut-rate" or "lowest priced" or "discount"?

David G. has this interesting post about proposed ethics rules changes in Ohio, including whether lawyers in their ads should be able to make claims about how cheap their services are - when the terms are not used in a false of misleading fashion.

All the right buzzwords - Scalia, Abramoff, Federalist, Clarence Thomas, Nascar

This hatchet job by the NY Times ignores the incredible online backlash against the stupid ABC News report on which it is based, while misaligning all the favorite code words now being used over and over to attack from the Left - "Federalist Society," "Abramoff," even "Nascar."

Shame on you, whoever wrote this.

The Carpitcher opinion

In In re: Carpitcher, the Court of Appeals in a decision by Chief Judge Fitzpatrick and Judges Elder and Humphreys rejected the petition for a writ based on actual innocence of the Roanoke County defendant whose young female accuser has at times recanted her accusations.

The Roanoke paper had this article on the case.

Thursday, January 26, 2006

Roanoke paper says no to Alito

The Roanoke paper comments: "Reject Alito's nomination," yet "Alito should not be rejected for ideological reasons" but instead because of his ideas about the separation of power among the three branches of the federal government.

Doe No. 5

In Doe v. Chao, the Fourth Circuit explained in a footnote: "We will refer to the four previous opinions in this case sequentially as Doe I, Doe II, Doe III, and Doe IV, with Doe I as the initial district court opinion, Doe II as our first opinion, Doe III as the Supreme Court’s opinion, and Doe IV as the district court opinion currently under review."

Since I botched my efforts to explain Doe I, Doe II, and Doe III, I'll pass on Doe V, except to note once again that this is the case that Joe Wolfe and Terry Kilgore had that went up to the Supreme Court.

Also, Doe V was written by Judge Karen Williams (the district judge was Glen Williams) but there was a dissent by Judge Michael, who noted that the outcome of the majority's reasoning would probably get to the same place, but "outcome never trumps reasoning."

4th Circuit takes minority view on issue of who is a law enforcement officer under the Federal Tort Claims Act

In United States v. Andrews, the Fourth Circuit in an opinion by Judge Williams, with Judge Shedd concurring, concluded that a Bureau of Prisons employee was not a "law enforcement officer" within the meaning of the exceptions to the Federal Tort Claims Act.

Judge King dissented, with this comment:

"Although I am a lone voice on this panel, I am not alone in espousing this position. Six of the nine courts of appeal to have addressed this issue agree with my view. See Halverson v. United States, 972 F.2d 654, 656 (5th Cir. 1992) (concluding that "plain language" of § 2680(c) encompasses property detentions by law enforcement officers acting in any capacity); see also Bramwell v. U.S. Bureau of Prisons, 348 F.3d 804, 806-07 (9th Cir. 2003); Hatten v. White, 275 F.3d 1208, 1210 (10th Cir. 2002); Cheney v. United States, 972 F.2d 247, 248-49 (8th Cir. 1992); Schlaebitz v. U.S. Dep’t of Justice, 924 F.2d 193, 194-95 (11th Cir. 1991); Ysasi v. Rivkind, 856 F.2d 1520, 1524-25 (Fed. Cir. 1988)."

Judge Turk rules that RLUIPA is constitutional after all

In Madison v. Riter, Judge Turk of the W.D. Va. on the second go-round has opined that the Religious Land Use and Institutionalized Persons Act as opposed to the claims of a particular institutionalized person is indeed constitutional, notwithstanding his earlier views expressed in Madison v. Riter, 240 F. Supp.2d 566 (W.D. Va. 2003), rev’d 355 F.3d 310 (4th Cir. 2003), cert. denied, 125 S. Ct. 2536 (March 30, 2005).

Judge Turk concluded "that RLUIPA is valid Spending Clause legislation that is not barred by the Tenth, Eleventh or Fourteenth Amendments, the separation of powers doctrine, or the Establishment Clause," and certified his rulings for immediate appeal to the Fourth Circuit.

Two great Title VII limitations questions in one case

In Vance v. Potter, Judge Glen Conrad of the W.D. Va. dealt with two interesting limitations questions:

The first was whether the 90-day limitations period for filing a Title VII claim after issuance of a right to sue letter can be tolled by a lawsuit that is dismissed without prejudice. Under Virginia law, a lawyer can file a half-baked claim, take a non-suit, and get the benefit of six months under the tolling statute, Va. Code § 8.01-229. In federal court, however, on federal law claims, there is no such tolling - so, in the Vance case, the answer was no.

The second was whether a claim was timely filed when the lawyer used electronic filing, and received the e-mail from the PACER system indicating the complaint was filed, but came to find out sometime later that the complaint has not been accepted for filing by the clerk's office because of problems with his credit card, needed for the filing fee. And, the answer was yes, at least for now, while electronic filing is still relatively new.

Direct evidence of the wrong guy's bad motive

In Baqir v. Principi, the Fourth Circuit in an opinion by Judge King, joined by District Judge Harwell with Judge Gregory dissenting in part, affirmed the entry of summary judgment on all of the plaintiff doctor's employment discrimination claims related to the termination of his employment as a doctor at Veterans Administration hospitals in North Carolina.

Judge Gregory's dissent was limited to the age claim. On age, alone among the several claims, the plaintiff claimed to have direct evidence, as one member of the board that recommended his termination told the plaintiff's wife over the telephone that he was being run off because of his age, that his kind of work was a young man's game.

Judge King allowed that this evidence did not create an issue for the jury, because the speaker was not the ultimate decisionmaker, but instead he was on the board two steps from removed from the medical director, who made the final decision. Judge King concluded that there was no evidence linking this direct evidence to the medical director, and also that there was no evidence that the medical director merely rubber stamped the recommendations he received.

Judge Gregory on the other hand was of the view that the decision making was all done together, and that there was evidence that the decisionmakers did not actually consider the plaintiff's lack of credentials when they were deciding to get rid of the plaintiff.

I think that both Judge King and Judge Gregory went too far in attributing the one board member's remarks to the entire credentials board, but I don't guess the point was critical to the conclusions of either judge.

I once wrote an article about proving the bad motive of a local government board in section 1983 cases, and one of the things discussed was when does the bad motive of the subordinate, like in Baqir, get attributed to the decisionmaker:

A number of courts have found that when the Board acts as a “rubber-stamp” or “cat’s-paw” for others who were illegally motivated, that motivation may be attributed to the Board. See Rios v. Rossotti, 252 F.3d 375, 382 (5th Cir. 2001) (“Statements of non decision makers become relevant, however, when the ultimate decision maker’s action is merely a ‘rubber stamp’ for the subordinate’s recommendation”); Azzaro v. County of Allegheny, 110 F.3d 968, 974 (3d Cir. 1997) (“To hold otherwise would be to grant public officials carte blanche to retaliate against employees as long as the retaliation is formally effectuated by the ‘rubber stamp’ approval of another public agent”); Shager v. Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990) (if a committee “acted as the conduit of a [supervisor’s] prejudice -- his cat’s paw -- the innocence of its members would not spare the company from liability”); Saye v. St. Vrain Valley School Dist. RE-1J, 785 F.2d 862, 867 (10th Cir. 1986) (“Where this line of causation exists, and the principal or superintendent predicated their recommendations on constitutionally impermissible reasons, these reasons become the basis of the decision by the Board members”); Haimowitz v. University of Nevada, 579 F.2d 526, 530 (9th Cir. 1978) (“where recommendations form the basis for the nonretention decision, this input is critical”); Bertot v. School Dist. No. 1, Albany County, 522 F.2d 1171, 1181 (10th Cir. 1975) (“The recommendation to the Personnel Committee, its recommendation to the Board, and the Board’s reasons for non-renewal of her contract are of critical importance in deciding whether the action adverse to her was for exercise of her constitutional rights”); Jamieson v. Poughkeepsie City School Dist., 2002 WL 480567 at *16 (S.D.N.Y.) (“a reasonable jury could find that Samselski’s alleged bias infected the overall decisionmaking process, even if she did not use racial animus to convince her fellow Board members to oust plaintiff”); McHugh v. Board of Educ. of Milford School Dist., 100 F.Supp.2d 231, 241-43 (D. Del. 2000) (denying summary judgment on “rubber stamp” theory, citing Azzaro).

The rubber-stamp argument fails if the advisors did not recommend the Board’s action or if the Board would have voted the same way regardless of the tainted advice. See Pennington v. City of Huntsville, 261 F.3d 1262, 1270 (11th Cir. 2001) (“Where a decisionmaker conducts his own evaluation and makes an independent decision, his decision is free of the taint of a biased subordinate employee”); Willis v. Marion County Auditor’s Office, 118 F.3d 542, 547 (7th Cir. 1997) (“when the causal relationship between the subordinate’s illicit motive and the employer’s ultimate decision is broken, and the ultimate decision is clearly made on an independent and a legally permissive basis, the bias of the subordinate is not relevant”); Al-Zubaidi v. Ijaz, 917 F.2d 1347, 1351 (4th Cir. 1990) (“We agree that if [one member] sought to sink Al-Zubaidi, then [the lone member] was attempting to sink a ship that already was sinking”); McClure v. Cywinski, 686 F.2d 541, 550 (7th Cir. 1982) (“there is insufficient evidence to support an inference that Cywinski recommended McClure’s termination to Murray,” distinguishing Haimowitz); Malone v. Greco, 1995 WL 222052 at *9 (W.D.N.Y.) (“defendants assert that Mr. Paul had no influence over the Board or individual councilmen to affect the outcome of the vote on any resolution”).

Most courts have held that the Board cannot be liable for acting on the tainted recommendation of its advisors or of a minority of Board members without ratification or at least knowledge of the bad motive. See City of St. Louis v. Praprotnik 485 U.S. 112, 127 (1988) (“If the authorized policymakers approve a subordinate’s decision and the basis for it, their ratification would be chargeable to the municipality because their decision is final”); Matthews, 294 F.3d at 1297-98 (“The final policymaker, however, must ratify not only the decision itself, but also the unconstitutional basis for it . . . A well-intentioned lawmaker who votes for the legislation--even when he votes in the knowledge that others are voting for it for an unconstitutional reason and even when his unconstitutionally motivated colleague influences his vote--does not automatically ratify or endorse the unconstitutional motive”); Beattie v. Madison County School Dist., 254 F.3d 595, 604 (5th Cir. 2001) (“Without a showing that the board had actual knowledge of the alleged improper basis of Jones’s and Acton’s recommendation, the board cannot be liable for the alleged retaliation”); Gattis v. Brice, 136 F.3d 724, 727 (11th Cir. 1998) (plaintiff must “present evidence that Administrator Brice not only accepted the recommendation of his deputy chiefs, but knew of and ratified the improper motives behind their recommendation”); San Filippo v. Bongiovanni, 30 F.3d 424, 446 (3rd Cir. 1994) (“the University would not be liable if, oblivious to the motivation behind the decision to charge San Filippo and to initiate dismissal proceedings, the Board had decided to dismiss San Filippo for wholly legitimate reasons”); Hill v. Clifton, 74 F.3d 1150, 1152 (11th Cir. 1996) (affirming summary judgment under § 1983 when it was not shown that the policymaking official knew of and ratified the improper motives of his subordinates when he accepted their recommendations); Wulf v. City of Wichita, 883 F.2d 842, 869 (10th Cir. 1989) (“The superior fires the employee, believing, falsely in fact, that good grounds exist therefore. In such a situation, it is inconceivable that the superior or the City would be liable”); Flickinger v. School Bd. of City of Norfolk, 799 F. Supp. 586, 593 (E.D. Va. 1992) (“although it was undisputed that the School Board ratified Dr. Carter’s decision, there was not a scintilla of evidence that the School Board members knew of any basis, constitutional or unconstitutional, for Dr. Carter’s decision”).

Wednesday, January 25, 2006

Kelo bypass

This post describes the new stand taken by the head of BB&T, that the bank will not loan money for some construction on property taken from private parties by government to give to other private parties for development.

Buck the dog, as he was

My sister's dog, always mellow. Posted by Picasa

Tuesday, January 24, 2006

Guide to dealing with PDF metadata

This WisBlawg post links to this National Security Agency report on sanitizing PDF files converted from MS Word.

More on the deficiency of funding for indigent defense in the Commonwealth

The Harrisonburg paper has this report on how Virginia does not pay enough for lawyers to present the poor in criminal cases.

The article quotes one lawyer as saying: "It puts me and anybody else who does court-appointed work in an automatic conflict of interest . . . It’s in my best interest to settle a case, and settle it quick."

Who owns the rights to Hank Williams' performance on the Mother's Best Flour Hour

In Polygram Records, Inc. v. Legacy Entertainment Group, the Tennessee Court of Appeals resolved the competing claims of three groups to intellectual property rights in the recordings from the 1950s of Hank Williams' performances on the radio.

The opinion contains this memorable paragraph:

"The chain of title Legacy relies on comprises a long and windy road during which there was a brief stop in a trash can at a radio station. If a song were written about this matter favorable to Legacy’s claim, it might be entitled, 'I Found a Gold Mine in the Radio Station Trash.' Indeed, although Legacy may have acquired certain tangible rights to WSM’s acetate tapes, and the performances by Hank Williams from the 40s and 50s embodied therein are golden, the gold attendant to Hank Williams’ performances may not be mined by Legacy. Accordingly, an appropriate title attributable to Legacy’s claim would be, 'Your Bucket Has a Hole in It.'"

The winners of the case were not the radio station group nor the record company, but the Hank Williams heirs.

Your new members of the Board of Governors of VBA

As shown here on the Virginia Bar Association's website, the new class of members of the Board of Governors includes Steve Busch from McGuire Woods, Rip Sullivan from Reed Smith, Karen McWilliams from DLA Piper Rudnick, and myself. The new law school representative is Professor Margaret Bacigal from the University of Richmond.

The president is Bill Van Buren, the president-elect is Glenn Lewis, and the chairman of the Board is Mike Pace.

I am delighted and challenged by the idea of joining a group of so many fine lawyers.

Professor Schwartz on section 1983 litigation - free article

I love the PLI lawyer's toolbox, with the series of free articles it sends to my mailbox.

Today, the link is to an article on the fundamentals of section 1983 litigation, by Professor Martin Schwartz, the author of the section 1983 litigation treatise.

Monday, January 23, 2006

Loudoun County as a case study in growth

The Christian Science Monitor has this article about suburban growth in Loudoun County, Virginia, titled "In a fast-growing county, sprawl teaches hard lessons."

The article says in part:

"The growing pains of Loudoun, the nation's fastest-growing county in the past five years, not only has residents up in arms, but have also drawn the attention of land-use experts across the United States. That's because exurbs - suburbs at the fringes of metropolitan areas - are growing faster than any other kind of community, according to census data. While high-speed growth has transformed suburbia for decades, what is new - and worrying - is that it's now occurring in areas without the infrastructure or experience to deal with it, these experts say."

On opportunities for inexperienced lawyers in federal court

Today I noticed this order from the U.S. District Court for the District of Massachusetts, which says in part: "the undersigned District Judge and Magistrate Judge, as a matter of policy, strongly encourage the participation of relatively inexperienced attorneys in all court proceedings," but also that "all attorneys appearing in court are expected to be appropriately prepared, regardless of experience."

Judge Bork, Dahlia Lithwick, et al. at the VBA meeting

On Saturday morning, the VBA meeting in Williamsburg featured a high-powered panel discussion including Judge Robert Bork, Slate writer Dahlia Lithwick, a district judge from Massachusetts, some guy named Bert, and two ex-William & Mary Law professors, Gerhardt and Smolla.

The topic formally was the Separation of Powers, which centered on three ideas: (1) the confirmation process for Supreme Court nominees is largely unsatisfactory, with the system that encourages the nominee to make himself "as small a target as possible," (2) the Schiavo case represents the new extreme in how far the Congress goes to interfere with the judiciary, and (3) the Supreme Court, at least according to Judge Bork, routinely oversteps its bounds in decision-making about social issues.

In other kinds of cases, the judge noted, the litigants can expect a "square, lawyer-like response," but in cases involving social issues the Court goes too far.

Regarding the Alito hearings, Ms. Lithwick said: "watching smart people talk about trivial things badly is depressing."

Professor Gerhardt noted that he was one of the law professor witnesses at the Alito hearings. I saw him on the C-SPAN morning call-in show that same week, and among other things, he refused to say whether he was for or against Judge Alito's nomination. His non-committal response made me think of Professor Tribe's explanation to Senator Specter (contained in this part of the transcript) about how it was that he was not there to testify against Judge Alito:

"SPECTER: Professor Tribe, did you say you were not testifying against Judge Alito?

TRIBE: I am not recommending any action. I'm recommending that everyone -- because I think it's foolish. Nobody really cares what I think.

SPECTER: Aside from your recommendation, are you saying you're not testifying against Judge Alito?

TRIBE: I'm not testifying for or against Judge Alito. I'm explaining why I am very troubled by his views. Obviously, it follows from that that I would be hard pressed to recommend his confirmation."

Bert Brandenburg is executive director of Justice at Stake, which has a website including this list of blogs.

Another swipe at peremptory strikes?

According to this article about the procedure in condemnation, one delegate has proposed a bill that would require the commissioners be selected "at random."

That sounds like what people say who oppose lawyer voir dire and peremptory strikes - just pick the jury at random, what could be more fair than that?

On Daubert in Virginia state court

On Friday and Saturday, I attended the Virginia Bar Association meeting in Williamsburg.

One session involved a discussion of whether and how Daubert applies in Virginia, and the thesis was put forward by the speakers, Judges Kelsey, Ney, and Baumgardner among them, that Virginia has the functional equivalent of Daubert in its case law applying the Virginia statute with the language of Rule 702, while avoiding the "Daubert Effect." The Daubert Effect was described as the paradox between the "liberalizing" intent of Rule 702 and the practical result that district courts in the exercise of their role as gatekeepers are keeping out more evidence, not less. Judge Ney was the trial judge in the case of John v. Im, in which the Virginia Supreme Court noted expressly that it was not making a decision about whether to adopt Daubert in applying Va. Code §§ 8.01-401.1 - 401.3: "We note, however, that we have not previously considered the question whether the Daubert analysis employed by the federal courts should be applied in our trial courts to determine the scientific reliability of expert testimony. Therefore, we leave this question open for future consideration."

As to the Daubert Effect, Judge Kelsey cited what I believe was this study available from the Federal Judicial Center, which notes in the summary: "Reporting both on their general experience with expert testimony and on their most recent civil trial involving such testimony, judges and attorneys indicated that judges were more likely in 1998 than in 1991 to scrutinize expert testimony before trial and then limit or exclude proffered testimony."

Michael Imprevento of the VTLA reported that there is a hearing today (Monday) in the General Assembly on this year's version of the Daubert bill, which I believe is H.B. 807, on which the VTLA and VADA take opposite views.

Judge Kelsey noted the Supreme Court's recent decision in the Lincoln Property v. Roche case, where the plaintiff's purpose in avoiding removal to federal court was acknowledged to be the difference in the standard for admissibility of expert testimony. Indeed, the District Court in the Roche case excluded the plaintiff's expert and entered summary judgment on the merits for lack of evidence of causation.

Judge Kelsey's introduction was so excellent I wish he would write it down and publish it in the VBA Journal.