Saturday, February 18, 2006

On blogger's remorse

Ken Lammers has finally gotten a couple of appeals granted, and now he's dreaming about what the oral argument would be like before a panel of judges who read his blog.

Somewhat similarly, Mike and his commenters have written lately on The Most Awkward Aspect of Blogging, dealing with the people they blog about.

Good headline for new judge blog story

The WSJ law blog says here: "Bush Nominates Tall and Stout Eagle Scout as N.C. Federal Judge," regarding the nomination of Frank Whitney to serve as judge of the United States District Court for the Western District of North Carolina, in Charlotte.

The case of the Bible-quoting juror

In Robinson v. Polk, the Fourth Circuit in an opinion by Judge Williams, with Judge Shedd concurring and Judge King dissenting, refused the habeas petition of a North Carolina inmate, where one of his claims was that his constitutional rights were violated because one of the jurors was citing the Bible during the deliberations on his sentence.

Evidently, the citation was not Exodus 20:13 or Romans 6:23, but instead something more like Exodus 21:23-25.

Judge King, in his dissent, says our constitutional system cannot tolerate the influence of the King James Bible on jurors: "when a jury’s deliberations have been contaminated by an improper external influence — even if that influence relates to the Bible of England’s first Stuart King — public confidence in our judicial system is undermined and the jury’s verdict must not be enforced."

Professor Berman has this interesting post about the case.

Class certification denied for black policyholders who were charged higher premiums by Jefferson-Pilot

In Thorn v. Jefferson-Pilot Insurance Co., the plaintiffs sought certification under Rule 23 of a class action on behalf of all African-Americans who were charged higher rates for life insurance than white customers over a period of seventy years by Jefferson-Pilot and its predecessor companies.

The District Court, by Judge Cameron Currie, denied certification, finding that "because it could not resolve Jefferson-Pilot’s statute of limitations defense on a class-wide basis, issues common to the class did not predominate over individual ones." The Fourth Circuit in an opinion by Judge Karen Williams, joined by District Judge James Dever from North Carolina with Judge Michael dissenting, affirmed the denial of class certification. The plaintiffs' claims were brought under 42 U.S.C. § 1981. The Court noted that the District Court found that several different statutes would apply for the different states. In addition, the Court noted that federal law would determine when the claims accrued, based on what the individuals knew or should have known, and "[e]xamination of whether a particular plaintiff possessed sufficient information such that he knew or should have known about his cause of action will generally require individual examination of testimony from each particular plaintiff to determine what he knew and when he knew it." The Court noted that the burden of proof falls on the plaintiffs to prove that the case meets the requirements of Rule 23, even thought the statute of limitations is an affirmative defense on which the defendant would have the ultimate burden of proof.

Addressing the claim that the members of the class more or less knew or should have known the same thing, the Court responded: "But short of the fact that the class members are all African-American and all purchased industrial life insurance policies from Jefferson-Pilot, the record reveals no information that would allow us to conclude that the class members — 1.4 million African-Americans of all ages and both sexes, who are spread out geographically over four states and temporally over 62 years — are so homogeneous that media reports and other information about dual-rate practices would affect them all in precisely the same manner. We refuse to make such broad generalizations about the class members based on nothing more than the color of their skin and inferences about their socio-economic status arising from the fact that they purchased an industrial life insurance policy from Jefferson-Pilot. To do so would be to engage in the very brand of stereotyping about which Appellants complain."

Could Governor Kaine ban Virginia employees from talking to Jeff Schapiro

In The Baltimore Sun Co. v. Ehrlich, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judges Luttig and Traxler, affirmed the decision by District Judge Quarles to dismiss in the Baltimore paper's constitutional challenge to the Maryland Governor's directive prohibiting state employees from speaking with two Baltimore Sun reporters.

The Court said: "Having access to relatively less information than other reporters on account of one’s reporting is so commonplace that to allow The Sun to proceed on its retaliation claim addressing that condition would 'plant the seed of a constitutional case' in 'virtually every" interchange between public official and press.'"

So, if President Bush prefers Bob Novak to Helen Thomas, that's not a First Amendment violation.

Decision of the Day has this post about the case.

What's the point of removing a state law claim based on federal law

According to this Jottings post, the Sixth Circuit reversed summary judgment for the employer and sent the case back to state court in Eastman v. Marine Mechanical Corp., where the plaintiff sued claiming wrongful discharge citing two federal laws as the underlying public policy and the employer removed the case. The Court said: "We hold, however, that the plaintiff’s state-law employment claim alleging wrongful discharge in violation of federal public policy does not raise a substantial federal question over which federal courts may exercise original or removal jurisdiction. . . ."

This outcome is in accord with the en banc Fourth Circuit's ruling in the rebel flag lunch box case, about reversing the panel decision about which I wrote here:

"Here, though, the claim is a creation of state law, and to say that the statute involves "a substantial question of federal law" is just not true, or if is true, the federal right applies only to state actors. In Kentucky, KRS 344.040 "mirrors Title VII of the Civil Rights Act of 1964" and therefore all the courts applying it, both state and federal, literally "use the federal standards for evaluating race discrimination claims." Smith v. Leggett Wire Co., 220 F.3d 752, 758 (6th Cir. 2000). Judge Goodwin (being from West Virginia) cites a similar West Virginia law in his dissent. By Judge Gregory's logic, all those claims are removable, but they're not. It might be good for employers if they were."

Thursday, February 16, 2006

Another inspiring lawyer's life

Read this story about a blind lawyer from New Mexico who died the other day at age 93.

It says in part:

"Santa Fe lawyer Albert T. Gonzales, who championed the poor and dispossessed during a career that spanned more than six decades, died Saturday of heart failure at his Don Gaspar Avenue home. He was 93.

Gonzales lost his eyesight after a diving accident at the age of 17. He became the first blind person to receive a Bachelor of Arts from The University of New Mexico, and the first to earn a law degree from Georgetown University . He also was the first blind person licensed to practice law in New Mexico. . . .

When Gonzales retired, he estimated that he had helped 8,000 clients in family law and about 3,000 bankruptcy clients.

Many of those clients were unable to pay their attorney, but they were able to make arrangements with Gonzales. 'Sometimes we would get bags of chile or potatoes from the poor people who lived on the farms of Northern New Mexico,' daughter Virginia Gonzales-Moench said.

'He was a one-man Legal Aid Society,' Donnelly said. 'He represented a lot of poor and indigent people. I used to see him in court every week representing someone who was quite poor. He was a very active lawyer you have to take your hat off to.' . . . ."

Monday, February 13, 2006

Smoking ban advances

The Washington Post reports here that the Virginia Senate passed an indoor smoking ban on Monday, by a vote of 21-18.

I'd say the motivating force behind this is that the majority of the senators are hoping to be able to sit down in a restaurant where they can hear the music or see the TV screen or feel the fireplace or avail themselves of the next available table for the first time in years without someone in the dinner party wailing and moaning and gnashing his or her teeth.

On federal pleading

"Any decision declaring 'this complaint is deficient because it does not allege X' is a candidate for summary reversal, unless X is on the list in Fed. R. Civ. P. 9(b)."

So said the Seventh Circuit, in Kolupa v. Roselle Park District, per this employment law post.

Law school at Liberty hopeful on provisional accreditation vote

The Lynchburg paper reports here that the law school at Liberty University is hopeful that the American Bar Association will grant it provisional accreditation at its mid-winter meeting in Chicago.

A Northeast Tennessee lawyer's life

From the Maryville paper:

J. Paul Coleman, 87, of Maryville, formerly of Johnson City, passed away on February 11, 2006 at Shannondale of Maryville. The son of William Lewis (Joe) and Eva Lou Coleman, he was born and raised on a small farm near Pocahontas, Tennessee. He graduated from Middleton High School, Class of 1938. A veteran of World War II, he served as an infantry Staff Sargent in General George S. Patton's Third Army and participated in the major battle campaigns of Northern France, the Rhineland and Ardennes. He was awarded the Bronze Star, the Combat Infantry Badge, and the European Theater Medal with Three Bronze Stars. He received the Purple Heart for wounds inflicted during the epic Battle of the Bulge. After the War, the G.I. Bill enabled him to attend and graduate from Cumberland School of Law in 1947. He practiced law in Johnson City for over fifty years, most of which time was spent in partnership with the Law Firm of Herndon, Coleman, Brading & McKee. He forged a professional reputation in his representation of physicians and hospitals in the defense of medical malpractice litigation. He practiced law just as he conducted his personal life... possessed of integrity, intellect and civility. He served as United States Commissioner for the Eastern District of Tennessee (1966-70), and was a member of the Washington County Bar Association (President 1956-57), the Tennessee Bar Association (Vice-President 1965-67, Board of Governors 1962-65), and the Judicial Conference of the United States Court of Appeals for the Sixth Circuit. He was selected to Fellowships in the American College of Trial Lawyers, the American Bar Foundation and the Tennessee Bar Foundation. He was a longtime member of Munsey Memorial United Methodist Church, serving on the Board and as a Sunday School teacher. He was a former President of the Johnson City Lions Club and was a member of the Hurstleigh Club for over 48 years. He was a remarkable man, who remained a gentleman of honor and dignity even unto his passing.

On living in the American Dream Town

The Roanoke paper reports here that Abingdon, Virginia has been designated the American Dream Town.

Abingdon is where I've lived mostly since 1969.

Sunday, February 12, 2006

On the museum of the United States District Court for the Eastern District of Tennessee

The Knoxville paper reports here on the museum inside the federal courthouse in Knoxville.

The article says because of courthouse security, "the small museum -- or historical suite, as the U.S. District Court Historical Society charmingly calls it -- is open by appointment only. The perk to that is museum curator Don K. Ferguson will be happy to give you a tour when he shows up to open the door. . . . It's Ferguson's firsthand knowledge of and enthusiasm for the court that enlivens a rather mundane collection of old furnishings, office supplies and judicial documents. With Ferguson as a guide, the tour turns into a living history experience."

On the humble elbow as the instrument of plague abatement

Via Slate, I see that the NY Times reports here that the World Health Organization is promoting elbow bumping as the infection-free alternative greeting.

The article says in part:

"The bump, a simple touching of elbows, is a substitute for the filthy practice of shaking hands, in which a person who has politely sneezed into a palm then passes a virus to other hands, whose owners then put a finger in an eye or a pen in a mouth. The bump breaks that chain. Only a contortionist can sneeze on his elbow."

Eau de Enron

According this Enron Trial Blog post, which I saw via Concurring Opinions, a recess was called on Friday after a juror complained that she was overpowered by the cologne of LA superlawyer Daniel Petrocelli, who is counsel for the defendant Jeffrey Skilling.

The Sullivan County prosecutor on the CSI effect

In this Kingsport Times story, the prosecutor on the Tennessee side of Bristol says he's been telling jurors for 15 years that real cases are not like what they see on TV.

Virginia asbestos bill is withdrawn

The Newport News paper reports here that two Newport News lawyers led the fight against a proposed asbestos law, HB 1285, that has now been withdrawn.

The Newport News lawyers are from the Patten Wornom firm, which firm includes on the business side our old friend Steve Meade, a former Southwest Virginian and William & Mary law grad.

Virginia law animated

"A pig in a bag." See Lake v. Tyree, 90 Va. 719, 19 S.E. 787 (1894); Woodrum v. Gross, 90 Va. 60, 17 S.E. 764 (1893).

"Cat out of the bag." Swann v. Com., 247 Va. 222, 232 n.6, 441 S.E.2d 195, 202 n. 6 (1994); Jenkins v. Com., 244 Va. 445, 455, 423 S.E.2d 360, 367 (1992); Mundy v. Com., 11 Va. App. 461, 469, 390 S.E.2d 525, 529 (1990); Pruett v. Com., 232 Va. 266, 271, 351 S.E.2d 1, 4 (1986).

"Cat and mouse game." McNair v. Com., 37 Va. App. 687, 696, 561 S.E.2d 26, 30 (2002); Canipe v. Com., 25 Va. App. 629, 644, 491 S.E.2d 747, 754 (1997); Satcher v. Com., 244 Va. 220, 247, 421 S.E.2d 821, 837 (1992); Iglesias v. Com., 7 Va. App. 93, 104, 372 S.E.2d 170, 176 (1988); Roenke v. Virginia Farm Bureau Mut. Ins. Co., 209 Va. 128, 134, 161 S.E.2d 704, 708 (1968).

Creeping in "like the fog 'on little cat's feet.'" Clark v. Winchester Memorial Hospital, 1984 WL 276313.

"Cock and bull story." Taylor v. Com., 208 Va. 316, 324, 157 S.E.2d 185, 191 (1967).

"The tail wagging the dog." Infants v. Virginia Housing Development Authority, 221 Va. 659, 679, 272 S.E.2d 649, 661 (1980) (Poff, J., dissenting); Rockingham County v. Town of Timberville, 201 Va. 303, 309, 110 S.E.2d 390, 395 (1959); Cogsdale v. Howard, 170 Va. 28, 32, 195 S.E. 514, 516 (1938).

"Cart before the horse." Newton v. Com., 29 Va. App. 433, 445, 512 S.E.2d 846, 851 (1999); Lovelace v. Lovelace, 237 Va. 174, 178, 375 S.E.2d 750, 753 (1989); see Reittinger v. Com., 29 Va. App. 724, 742 n.4, 514 S.E.2d 775, 784 n.4 (1999) ("No matter how appealing the cart may be, the horse must precede it.") (citation omitted); Hunter v. Norfolk Redevelopment & Housing Authority, 195 Va. 326, 338, 78 S.E.2d 893, 900 (1953).

"Gone to the dogs." Hogan v. Callas, 139 Va. 137, 123 S.E. 361, 362 (1924).

"Dead as a dodo." Norfolk County v. City of Portsmouth, 186 Va. 1032, 1043, 45 S.E.2d 136, 141 (1947).

"A dog in the fight." Transcontinental Ins. Co. v. RBMW, Inc., 262 Va. 502, 515, 551 S.E.2d 313, 320 (2001).

"Let a sleeping dog lie." Ward v. Bank of Pocahontas, 167 Va. 169, 179, 187 S.E. 491, 495 (1936).

"Leg over leg the dog went to Dover." City of Danville v. Sallie, 146 Va. 349, 355, 131 S.E. 788, 790 (1926).

"A mule by any other name is still a mule." Dials v. Lee's Hill, 41 Va. Cir. 214, 1996 WL 1065664; see also Clark v. Winn Dixie, 40 Va. Cir. 228, 1996 WL 1065588 ("You can call a mule 'Man o'War,' but that won't make him a racehorse.")

"Smelled like three day old fish." Eaton v. Com., 240 Va. 236, 264 n.4, 397 S.E.2d 385, 402 n.4 (1990).

"Shooting fish in a barrel." Hughes v. Com., 211 Va. 28, 30, 175 S.E.2d 419, 420-21 (1970).

"Running around like a little poodle dog." Payne v. Tancil, 98 Va. 262, 35 S.E. 725 (1900).

"A case of barking dog." Hannah v. Com., 153 Va. 863, 866, 149 S.E. 419, 420 (1929).

"A mad dog who should be put in a gunny sack with some bricks and dropped off a bridge." Payne v. Com., 257 Va. 216, 226, 509 S.E.2d 293, 299 (1999).