Saturday, March 04, 2006

More on the 19th century federal judge buried in Abingdon

Previously, I posted about Judge Robert William Hughes, a judge of the E.D. Va., who was buried in Abingdon in 1901. Here are some additional facts:

Hughes was of an old Virginia family, whose ancestors came to the area of Powhatan County before 1700, when it was still Goochland County.

He served in the Confederate Army during the Civil War, then returned to his pre-war occupation as a newspaper editor in Richmond. In June, 1869, he shot and wounded a rival newspaperman in a duel.

Hughes "was an extreme secessionist, but after the war he became a moderate Republican and a favorite of President Grant, causing many of his old friends to consider him 'worse than a carpetbagger' and a 'Judas.'" He resigned as U.S. Attorney for the Western District of Virginia in 1873 for his unsuccessful campaign for governor, against James L. Kemper.

In 1881, the College of William & Mary conferred on him an honorary doctor of law degree. His son, Robert Morton Hughes, was a president of the Virginia Bar Association from 1895-96.

Friday, March 03, 2006

How you can tell Jerry Fuhrman does not aspire to be an appellate advocate

His take on Justice Ginsburg: Would Someone Wake The Old Bat Up?

This year's Virginia Court of Appeals nominees and the state of the judicial selection process

The Washington Post reports here that Northern Virginia legislators are irate that Fairfox County Circuit Judge Ney was not selected to the court of appeals, instead of William Petty and Randolph Beales.

The article makes these points:

1. Northern Virginia legislators claimed that "the selections violated an informal agreement among Republicans that each of Virginia's 11 congressional districts would be represented on the state Court of Appeals."

2. Del. Albo said: "Nobody, in my opinion, voted on qualifications."

3. Del. Albo noted "that neither Beales, of the Richmond area, nor Petty had submitted to the traditional review by the state bar."

4. Del. Moran said the candidates chosen "are capable but easily identified with the Republican Party."

This doesn't sound like anything new, or especially alarming, since the two guys the Republicans picked are both strong candidates - notwithstanding Ken Lammers' less than self-serving observation.

Thursday, March 02, 2006

Yes, but how many will also whack CNN

The Norfolk paper reports here that Dr. Pat Robertson is bummed at the thought that if consumers get to pick their own channels, there will be fewer viewers for the PTL Club.

This suggests that they are relying for their ratings in part on people who fell asleep and rolled over on the remote control.

Judge Judy too mean for Muammar

Taranto cracks me up, including today's reference to this article on the release of political prisoners in Libya, which says:

"The 85 political prisoners, most of them professionals and students, were originally tried by the People's Court - a court which was abolished last year."

Punitive to compensatory ratio of 15,000:1 - will that pass constitutional muster?

The Kingsport paper reports here on the federal court trial of a civil rights case where the jury awarded $1 in compensatory damages but $15,000 in punitive damages against one defendant and $5,000 each against two other defendants.

In the State Farm case, the Supreme Court frowned on a punitives to compensatory damages ratio of 145:1, yet observed that "because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where 'a particularly egregious act has resulted in only a small amount of economic damages.'"

Mike linked just the other day to a Second Circuit opinion in a somewhat similar case, where the punitive damages were whacked from $20,000 to $10,000, based on what is in the federal law arguably the affirmative defense of inability to pay. As I wrote here, the case on this point that always comes to mind is the Joe Morgan airport case.

Do Ronnie, Nick, or Hilary read this blog, I wonder.

Also, you can't pull over when steering with knees and eating French fries

The Roanoke paper correctly lampoons new Del. Bowling for opposing a ban on cellphone use by teen drivers based on the illogic that the roads of Southwest Virginia are too narrow and winding for the teen drivers to pull over to talk on the telephone.

The editorial says in part:

"A House subcommittee found no shortage of lame reasons for turning away a ban on cell phone use by teen drivers.

But of all the excuses -- that included the usual pandering that cell phones are no more distracting than radios, eating or talking with a passenger -- the one offered by Del. Danny C. Bowling, D-Tazwell County, takes the prize.

Bowling didn't like the provision that would have required teens to pull to the side of the road before taking or making calls. The roads in his district are too narrow and too windy to provide safe shoulders, Bowling offered. Yet they are safe enough for Virginia's most inexperienced drivers to divert their attention away from the curves and onto calls?"

All this makes me think of the reasoning attributed (in this book) to George Burns, who supposedly said: "I never jog. It makes me spill my martini."

Still more on the AG opinion about Kaine's executive order

The Norfolk paper editorializes here that the McDonnell opinion is no good because (a) the AG did not say that discrimination is a bad thing, and (b) the AG knocks down straw men by concluding the Governor's executive order cannot extend farther than anyone would have thought it does anyway.

So, the Attorney General is now criticized because he did not include politics in his legal analysis, and criticized also because his conclusions about the limitations on the proper scope of the Governor's executive order are too obviously correct, and therefore should not have been mentioned in his opinion.

Hoping for a writ of overturnal

This great post from The Legal Reader tells of how someone's spell-checking changed all the "sua spontes" into "sea sponges" and about another lawyer seeking "quashal" of process served on his client.

Somehow, this reminds me of a Wise County lawyer story I once heard.

Who wouldn't want to choose a Virginia forum

This article discusses appeals in Washington state regarding, among other things, consumer contracts with AOL, including the validity of the forum selection clause, about which it says:

"In a separate case Tuesday, justices heard arguments from America Online, which has a clause in its contract that would force consumers to only take action in Virginia courts. The state of Virginia does not have a process for which consumers can bring class-action lawsuits to court.

The Washington Court of Appeals struck down that provision, saying the clause violated public policy.

AOL's lawyer, John O'Quinn, argued that consumers would be allowed to take class actions in federal court.

AOL's "terms of service" is also a take-it-or-leave-it contract. But those terms are even more unconscionable than an outright class-action ban, Smith said, because it essentially allows AOL to claim that Washington's consumer laws do not have jurisdiction over them, even though they do consumer business in Washington.

"Each of the individual consumers in this case has suffered damages that probably are less than $250. This is little -- if any -- incentive to bring an individual private action in Washington, let alone in Virginia," Smith wrote in another brief to the court."

Wednesday, March 01, 2006

Law City

Here is the kind of sign I always expected from Pete Curcio as the Dean of the Bristol School of Neon, but he never did get one.

Republicans pick Petty, Beales for Virginia Court of Appeals

The Lynchburg paper reports here and the Staunton paper reports here that the Republican caucus of the General Assembly has picked Lynchburg's Commonwealth's attorney, William Petty, and former Attorney General Randolph A. Beales, for vacancies on the Virginia Court of Appeals.

Why the sudden increase in Crohn's patients

Sure, everyone says they have Crohn's disease, now that scientists have concluded Viagra could treat Crohn's disease.

("No ED here, it's for my bowels.")

One way to skin a few cats

In Illinois, evidently the state bar association conducts an advisory poll of the lawyers in a given circuit about the qualifications of the judicial candidates for that circuit, and to be "recommended" the candidate has to score a 65 or higher on the poll.

And, from this fun article, it appears that some would-be judges are mad that they don't make the numbers. One supporter of a woman candidate complained that her low ratings were the result of gender bias. One lawyer was viewed by only 7.69% of the respondents as meeting the requirements for being a judge. One fellow who just missed the grade on temperament declared: "There's good reasons why bar associations don't choose judges." (I guess there was no separate category for subject-verb agreement.)

Heck, I don't know any of these lawyers or judges, but I had fun putting those quotes in the mouths of people I do know, in Virginia or Tennessee or somewhere around here.

Dinner with D'Brickashaw

SportingNews (is that the same as The Sporting News?) has this interesting interview with D'Brickashaw Ferguson, the four-year OT starter for Virginia, who was named after Father Ralph from The Thornbirds (the guy played by Richard Chamberlain who had a love child with the woman played by Rachel Ward, back in the days of The Mini-Series).

Read it - Chad, that means you.

Hmm, that's not encouraging

One of the commenters to this J. Sarge post got it straight from the horse's mouth that Professor Howard thinks the McDonnell opinion on the Kaine executive order is all wet.

That's sort of like James Madison writing a letter to the New York Times saying the Supreme Court can't figure out the Federalist Papers.

Tuesday, February 28, 2006

Virginia bill makes Volokh!

Professor Volokh had this post about a Virginia bill, HB 1531, that "would prohibit health care professionals from asking a patient about gun possession, ownership or storage unless the patient is being treated for an injury related to guns or asks for safety counseling about them." Apparently, it passed the House 88-11 but went down in the Senate.

You'll need a lawyer to deer hunt in Southhampton County

So says outdoors writer Bill Cochran in this article about the local politics of deer hunting in one Virginia county.

On a surfer/lawyer/author

Reading here about the late Peter Beck, of the Charleston SC bar, it says:

"He was a graduate of the University of Pennsylvania and the University Of South Carolina School Of Law. He was a partner with Qualey and Beck Law Firm. He was the current President of The Charleston Chapter of Surfrider Foundation, past President of Zeta Psi Fraternity at the University of Pennsylvania, a member of The South Carolina Bar Association, a former Assistant Solicitor for the 9th Judicial Circuit (Charleston County), a former Assistant to the Washington, D.C. News Bureau Chief of Hearst Publications and Broadcasting, and local admissions representative for the University of Pennsylvania. He was an avid surfer and an author."

Sunday, February 26, 2006

Dr. Knox wins civil case on lack of causation

The Roanoke paper reports here: "Former Roanoke pain doctor Cecil Knox on Thursday won the first of several wrongful death cases against him when a federal jury found his actions were not a direct cause of a patient's overdose."

Before there were bloggers, there were cloggers

The Washington Post has this interesting article on a D.C. area gathering of cloggers.

I can't recall when I first saw some cloggers, perhaps in the summer time at Fontana Village, where later this year will be held a Clog Camp.

Professor Berman cracks down on the Fourth Circuit crack opinion

Professor Berman in this post has no use for the Fourth Circuit's opinion in U.S. v. Eura, in which the Court rejected the effort by District Judge Payne of the E.D.Va. to substitute a ratio of his own in place of the 100:1 crack to powder cocaine ratio in the Sentencing Guidelines.

I thought, just flipping through the opinion, that the issue was whether the District Court could look to non-case-specific factors such as the reports of the Sentencing Commission that had been rejected by Congress, to which the panel answered no, and on which point Judge Michael had some separate thoughts in his concurring opinion.

Is it pedantic or pedentic

I was looking at some opinions this afternoon and saw the word "pendant."

That's not right, thought I. The correct spelling in the context of jurisdiction is "pendent." A "pendant" is a piece of jewelry.

I ran it through Westlaw - allfeds - pendant /s jurisdiction. There were more than 2100 opinions that said "pendant," compared to 10,000+ with "pendent."

Holy catbirds, I thought, better leave this one alone. Federal judges can't be wrong 2100 times, can they?

A Joe Smiddy story

From this web page, it says:

"The remarkable Joseph C. Smiddy, coal miner's son, musician, scholar and humanitarian, joined the first faculty at Clinch Valley as professor of biology. Two years later he was appointed dean, and eventually became chancellor. As teacher, administrator, and self-proclaimed 'voice crying in the wilderness,' he kept the college going through its lean early years, sometimes by wit alone. On one occasion he saved the first dormitory by assuring the University of Virginia provost that it would be used to house students from broken homes.

Smiddy's unerring instinct for doing the right thing was never more evident than the day an excited secretary rushed into his office exclaiming 'Mr. Smiddy, what should we do? There's a woman in the registration line with skin as black as it can be.' Without looking up, Smiddy asked, 'What color is her money?' A few moments later Clinch Valley College was integrated, years before its parent institution admitted African Americans as undergraduates."

I suspect that Joe Smiddy did not need any executive orders or attorney general opinions to do the right thing.

Stroke of the pen, law of the land. Kind of cool.

So said Paul Begala, in reference to executive orders of President Clinton. See Frank J. Murray, Clinton's Executive Orders Still Are Packing a Punch: Other Presidents Issued More, But Many of His Are Sweeping, WASH. TIMES, Aug. 23, 1999, at A1 (quoted in Branum, President or King? The Use and Abuse of Executive Orders in Modern-Day America, 28 J. Legis 1 (2002)).

In this opinion, Attorney General McDonnell ruled that Governor Kaine's Executive Order adding sexual orientation as a protected class within state employment was beyond his powers as Governor.

Among the prior opinions cited was 1983-84 Va. Op. Atty. Gen. 180, by Attorney General Baliles, which says in part:

"Although no provision of the Constitution explicitly authorizes the Governor to issue executive orders and no Virginia statute provides a general grant of authority to issue such orders, Governors of the Commonwealth have historically issued executive orders in the absence of a specific statute expressly or generally conferring the authority. The Governor has the inherent authority to issue executive orders in order to "take care that the laws be faithfully executed." Art. V, § 7. It is recognized that there is a general reservoir of powers granted by the Constitution to the Governor as the Chief Executive of the Commonwealth. See 1945-1946 Report of the Attorney General at 144.

Examples of situations in which executive orders are appropriate are as follows:

(1) Whenever a provision of the Code of Virginia expressly confers that authority upon the Governor. See, e.g., §§ 2.1-51.9, 2.1-51.15, 2.1-51.18, 2.1-51.21, 2.1-51.24 and 2.1-51.27 (permitting the assignment or reassignment of agencies to Cabinet Secretaries by executive order); and § 44.1- 146.17(1) (permitting the issuance of executive orders to carry out the purposes of the Emergency Services and Disaster Law). Compare Boyd v. Commonwealth, 216 Va. 16, 215 S.E.2d 915 (1975), with Jackson v. Hodges, 176 Va. 89, 10 S.E.2d 566 (1940); see, also, 1941-1942 Report of the Attorney General at 75;

(2) Whenever there is a genuine emergency which requires the Governor, pursuant to his constitutional responsibility and power, to issue an order, to abate a danger to the public regardless of the absence of explicit authority. See 1945-1946 Report of the Attorney General, supra; and

(3) Whenever the order is administrative in nature, as opposed to legislative. See 1965-1966 Report of the Attorney General at 143.

An executive order may not, however, be employed when a law is required. See 1977-1978 Report of the Attorney General at 5. This is because the legislative power of the Commonwealth is vested in the General Assembly pursuant to Art. IV § 1, and the Governor may not exercise that power. See Art. III, § 1; Accord Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.Ct. 863, 867 (1952).

Nor may an executive order be used to establish an agency which has authority to implement or enforce the requirements of law. The creation of such an agency requires the exercise of legislative powers in accordance with Art. III § 1 and Art. IV, § 1. An executive order may be used to establish an agency which possesses merely advisory authority, however."

McDonnell's opinion notes that the General Assembly can and does identify the classes to be protected from discrimination in the Commonwealth, citing Va. Code §§ 2.2-2639, 2.2-3004, 2.2-3900, 2.2-3901, 2.2-3902, 2.2-4200, 2.2-4310, 2.2-4311, 15.2-853, 15.2-854, 15.2-965, 15.2-1507, 15.2-1604, 22.1-212.6, 22.1-306, 23-38.110, 23-50.16:24, 23-50.16:36, 23-77.4, 23-91.23:1, 36-96.3, 36-96.4, 38.2-508.2, 38.2-2115, 38.2-2213, 59.1-21.21:1, 62.1-129.1. It also notes: "Since 1997, the General Assembly has on 17 occasions considered bills adding sexual orientation to various nondiscrimination statutes. The General Assembly repeatedly has rejected these proposals and has declined to change the Commonwealth’s public policy by adding sexual orientation to its statutes barring discrimination in a variety of contexts, including employment. In fact, the General Assembly earlier this month again declined to adopt this public policy during the current legislative session."

Given all that background, the Attorney General's conclusion seems to me not only plausible, but perhaps inescapable.

I'm surprised, however, that there was no mention of the Supreme Court's decision in Boynton. In that 2006 case, the Supreme Court held that the Virginia Personnel Act, the execution of which is to be directed by the Governor, does not apply to present and former employees of the Office of the Attorney General. It seems possible that the Governor's claim of authority is the weakest with respect to those segments of the state's work force similarly exempted under Va. Code 2.2-2905, which include:

1. Officers and employees for whom the Constitution specifically directs the manner of selection; 2. Officers and employees of the Supreme Court and the Court of Appeals; 3. Officers appointed by the Governor, whether confirmation by the General Assembly or by either house thereof is required or not; 4. Officers elected by popular vote or by the General Assembly or either house thereof; 5. Members of boards and commissions however selected; 6. Judges, referees, receivers, arbiters, masters and commissioners in chancery, commissioners of accounts, and any other persons appointed by any court to exercise judicial functions, and jurors and notaries public; 7. Officers and employees of the General Assembly and persons employed to conduct temporary or special inquiries, investigations, or examinations on its behalf; 8. The presidents, and teaching and research staffs of state educational institutions; 9. Commissioned officers and enlisted personnel of the National Guard and the naval militia; 10. Student employees in institutions of learning, and patient or inmate help in other state institutions; 11. Upon general or special authorization of the Governor, laborers, temporary employees and employees compensated on an hourly or daily basis; 12. County, city, town and district officers, deputies, assistants and employees; 13. The employees of the Virginia Workers' Compensation Commission; 14. The officers and employees of the Virginia Retirement System; 15. Employees whose positions are identified by the State Council of Higher Education and the boards of the Virginia Museum of Fine Arts, The Science Museum of Virginia, the Jamestown-Yorktown Foundation, the Frontier Culture Museum of Virginia, the Virginia Museum of Natural History and The Library of Virginia, and approved by the Director of the Department of Human Resource Management as requiring specialized and professional training; 16. Employees of the State Lottery Department; 17. Production workers for the Virginia Industries for the Blind Sheltered Workshop programs; 18. Employees of the Virginia Commonwealth University Health System Authority; 19. Employees of the University of Virginia Medical Center; 20. In executive branch agencies the employee who has accepted serving in the capacity of chief deputy, or equivalent, and the employee who has accepted serving in the capacity of a confidential assistant for policy or administration; 21. Employees of Virginia Correctional Enterprises; 22. Officers and employees of the Virginia Port Authority; 23. Employees of the Virginia College Savings Plan; 24. Directors of state facilities operated by the Department of Mental Health, Mental Retardation and Substance Abuse Services employed or reemployed by the Commissioner after July 1, 1999, under a contract pursuant to § 37.2-707; 25. The Director of the Virginia Office for Protection and Advocacy; and 26. Employees of the Virginia Tobacco Settlement Foundation.

(I suppose a similar point is made in footnote 23, which says: "Moreover, the Governor’s authority to set policy is limited to the executive branch. See § 2.2-103(A). Executive Order No. 1 attempts to regulate 'all facets of state government.' See Exec. Order No. 1, 18:11 Va. Reg. Regs. 1431 (Feb. 11, 2002), revised 22:10 Va. Reg. Regs. 1701 (Jan. 23, 2006). The term, 'all facets,' would include the legislative and judicial branches of state government. To the extent the Executive Order is appropriate, it can only apply to the executive branch.")

A lot of the discussion in the McDonnell opinion did not really make sense to me, until I re-read the executive order, which purports to declare the "firm and unwavering policy" of the Commonwealth. "Public policy" is the basis for the law of wrongful discharge in Virginia. An enterprising plaintiff's lawyer might take Governor Kaine's declaration of public policy and use it as a basis for a Bowman claim against a private employer. I think part of the Attorney General's opinion is addressed to preclude that argument.

UPDATE: Here is Claire Gastanaga's post on the AG opinion. Respectfully, I disagree with just about everything she said. With regard to the "activism" charge, I'm not sure what that means any more, but I have been loosely following the discussion about Justice Breyer's book, as the counterpoint to Justice Scalia's book, having read neither. The latest discussion I heard about this suggested that one difference between Breyer and Scalia was that Breyer was more concerned about making a statute doing what it was supposed to do, in spite of the text if necessary, while Scalia would rather sooner see the statute fail of its purpose than go beyond the text. This AG opinion seems to me the product of the latter kind of decisionmaking. It contains no discussion at all of the merits of the policy at issue. In that sense, the charge that the Attorney General will let politics dictate his legal analysis is, in my view, wholly unsustainable.

Maybe I'll try a flu shot next year

Stuff to think about for next flu season:

1. Get a flu shot (which I have never done).

2. Don't have lunch with people from the firm who have the flu (which I apparently have done).