Saturday, April 22, 2006

On dueling statutes

I read with interest Friday's decision by the Virginia Supreme Court in the case of Ogunde v. Commonwealth. The choice was between Va. Code § 8.01-195.7, the limitations contained in the Virginia Tort Claims Act, and Va. Code § 8.01-243.2, the inmate limitations statute, which refers specifically to claims brought by persons in a state correctional facility pertaining to the conditions of their confinement. The opinion was written by the late Justice Compton.

And, the opinion concludes that the Tort Claims limitation applies, as the statute of "narrower" application. The question seems much closer to me than the opinion suggests. The Circuit Court might reasonably have concluded that the inmate statute is considerably "narrower" - the Tort Claims Act covers the entirety of state government, whereas the inmate statute is limited to the claims of state inmates related to the conditions of their confinement. The Supreme Court in its opinion sought to "harmonize" the two statutes, and to avoid the "implied" repeal of the earlier statute. A contrary view might be that the Court's decision makes meaningless the later statute as applied to state inmates.

The Court notes that the inmate statute might be applied to claims other than for money damages. This point seems off the mark. Statutes of limitations apply principally to claims for damages, and not claims for equitable relief. Indeed, the statute refers to a "personal action," a term of art defined elsewhere in Title 8.01's chapter on limitations to "include an action wherein a judgment for money is sought, whether for damages to person or property." Va. Code § 8.01-228. The timeliness of equitable claims is sometimes measured by equitable doctrines such as laches.

The point is not to say that the Court is wrong, but rather than its analysis fits with what I've been reading lately, which is the recent biography of Justice Sandra Day O'Connor by Joan Biskupic - Sandra Day O'Connor : How the First Woman on the Supreme Court Became Its Most Influential Justice. It is a lively and interesting book. One of the themes is to contrast the judicial philosophies of O'Connor and other justices, including Justice Scalia. Included in the book is the following quote from Justice Scalia:

"I don't think a judge is supposed to come up with the best result. He's supposed to come up with the result that the law demands. Almost always he's dealing with a text and almost always his job is to give the text the fairest, most reasonable interpretation. Only in that way is he being faithful to the democratic experiment. Sometimes you reach results that are not good results. That's because sometimes laws that are adopted are not good laws." I take this to mean that "harmonization" is not among Scalia's priorities.

By contrast, of Justice O'Connor, Professor Jeffries is quoted as saying: "She tries, first, to do justice on the facts of a particular case. Then she links the results in the case to general principles." All this appears in chapter 15, which is as far as I've gotten.

Applying this new-found knowledge, I would guess that this limitations opinion is more like O'Connor than Scalia, but not that there's anything wrong with that.

On the flip side, I also was interested in the Supreme Court's decision in the Front Royal Wal-Mart case, Jacabcin v. Front Royal. In that case, involving the controversial rezoning for the construction of a big box store in the town, two council members declared that they had conflicts of interest and refused to attend the meeting at which the rezoning to be decided. A third member also refused to show up, leaving only three members out of six. The three pressed on, relying on language in the Conflict of Interest Act, Va. Code § 2.2-3112(C), as an exception to the general requirement of a quorum under Va. Code § 15.2-1415. The Court in an opinion by Judge Russell concluded that the COIA was inapplicable, and the conflicted council members should have shown up for purposes of establishing a quorum, then managed to avoid participation in the discussion of the rezoning matter - even though the concept of "participation" is ill-defined, and the penalties for violation of COIA include the prospects of criminal prosecution and forfeiture of office. Va. Code §§ 2.2-3120 and 2.2-3122. The Court quotes language from 2.2-3112, about "the number required by law to act," then cites to the statute titled "At what meetings governing body may act," and concludes that the two statutes are totally unrelated. The Court discusses how the quorum requirement is important democracy, without addressing the effect that having present at the critical meeting those council members who were conflicted because of ties to one side the confidence of citizens or businesses supporting the other side.

The Front Royal Wal-Mart was the subject of high emotions, and there were many outraged opponents of the rezoning. The Wal-Mart people have now lost the case because conflicted legislators sought to avoid the appearance of impropriety. The former legislator O'Connor might have tried to find a way to salvage the town's vote. The Front Royal decision, as it applies a bright-line principle, with some inharmonious effects, seems to me more Scalia-like.

That's the problem with reading books, you get filled with ideas.

Jaded JD, run amok

He's using the Brideshead characters in law school exams.

Which reminds me that I have a case now where one of the opposing lawyers is named Kara. The first time we spoke on the telephone, I had to ask, is that Cara with a 'C'? Back at the office they laugh at how easily I am distracted by obscure matters of this kind. (Cara was Lord Marchmain's mistress, an intimidating and mysterious figure to young Charles Ryder when he first went on holiday to Venice.)

Thomas Eugene Worrell

The Bristol paper, formerly part of the Worrell chain, published this obituary for Thomas Eugene Worrell, and it says in part:

"He attended Wake Forest College on a debating scholarship where he distinguished himself as a champion orator. Graduating cum laude in 1940, he attended Wake Forest School of Law and earned his degree from George Washington School of Law. He met his wife and lifelong companion, Anne Everette Rowell, in Bristol, where she attended Virginia Intermont College.
He worked as a special agent with the Federal Bureau of Investigation during World War II and later practiced law in his hometown of Bristol. His community involvement led to his selection as "Young Man of the Year" and as Chamber of Commerce president he was influential in bringing several industries to the area after the war.
In 1949, he began a career as a newspaperman and, with his wife, founded The Virginia Tennessean newspaper in Bristol. This marked the beginning of Worrell Newspapers Inc., which became one of the largest chains of small dailies in the country. His purchase of The Daily Progress in 1970 prompted he and his wife to move to Charlottesville, where he lived until his death.
Upon moving to Charlottesville, he acquired "Pantops" farm for the corporate offices of Worrell Newspapers. He subsequently purchased adjacent properties and developed Peter Jefferson Place, one of the premiere office parks in the area, providing an outstanding working environment for many local and national businesses. Peter Jefferson Place will be the future home of Martha Jefferson Hospital.
In 1978, he transferred ownership of Worrell Newspapers to his son, Thomas E. Worrell Jr., and established Worrell Investment Company, where he has continued to serve as president. Worrell Investment Company's office is home to The Worrell Collection, an outstanding collection of wildlife art. The only collection of its magnitude in the country, it includes sculpture, paintings and antique Chinese jade. In 1979, he also founded Worrell Land and Cattle Company, premiere breeders of Limousin cattle.
His commitment to supporting pioneering initiatives at Wake Forest University spanned 30 years, beginning with the purchase of a house in London to be used as a residential study center. The Worrell House has been home to hundreds of faculty and students while they lived and studied in London. He had endowed several professorships and established the Robert Goldberg Award in Trial Advocacy. In 1993, he made a gift to the university to create the Worrell Professional Center for Law and Management. This was the first academic building in the country to house law and graduate management schools under one roof, sharing programs, faculty and students. In 1979, he received an honorary doctor of humanities degree and, in 2006 was awarded the Medallion of Merit Award. This award is Wake Forest's highest honor and is presented for outstanding achievement and distinguished contribution to the university."

On the Ninth Circuit t-shirt case

I read Harper v. Poway Unified School District by Judge Reinhardt, and Judge Kozinski's dissent, and the Volokh Conspiracy posts here and here.

And, I think I agree with the proposition that Judge Reinhardt's opinion is horribly wrong, but the School Board should win the case anyhow.

Too late for Floyd County prosecutor

Pursuant to HB 884, state law will soon provide: "The absence from the county or city of a constitutional officer by reason of his service in the Armed Forces of the United States shall not be deemed to create a vacancy in the office without a written notification by the officer of his resignation from the office. Notwithstanding any other provision of law, including § 19.2-156, the power to relieve a constitutional officer of the duties or powers of his office or position during the period of such absence shall remain the sole prerogative of the constitutional officer unless expressly waived by him in writing."

This would seem to overrule the Supreme Court's decision in the case of the Floyd County Commonwealth's Attorney who was sent to Iraq.

Should have tried Melancholy Baby

It says here: "the Connecticut Statewide Grievance Committee has officially reprimanded a lawyer for humming the Twilight Zone theme during a divorce hearing."

On taking attendance at local commission, board, and authority meetings

HB 1171, now passed into law, allows localities to remove appointees to various commissions and boards is the appointee misses three meetings in a row or four meetings in a year.

On the new Virginia VoIP service law

In HB 1198, the General Assembly has taken voice over internet protocol from the jurisdiction of the State Corporation, and immunized VOIP service providers from money damages for negligence related to the handling of emergency calls.

The new law contains this definition:

"Voice-over-Internet protocol service" or "VoIP service" means any service that: (i) enables real-time, two-way voice communications; (ii) requires a broadband connection from the user’s location; (iii) requires Internet protocol-compatible customer premises equipment (CPE); and (iv) permits users generally to receive calls that originate on the public switched telephone network and to terminate calls to the public switched telephone network.

On the bond requirement for plaintiffs when appealing civil cases in Virginia state court

H 812 passed into law, and it will eliminate "the requirement that a plaintiff post a bond in order to appeal a judgment in cases where the defendant has not asserted a counterclaim."

Sixty per cent of lawyers have malpractice insurance?

HR 6 from the 2006 regular session says this:

"WHEREAS, attorneys have ethical and legal obligations to their clients; and

WHEREAS, as the number of attorneys licensed in the Commonwealth increases, the number of legal malpractice cases will also undoubtedly increase and some statistics even indicate that the number of legal malpractice cases is increasing at a faster rate than the increase in the number of attorneys; and

WHEREAS, malpractice insurance is not required to practice law in Virginia; however, statistics show that approximately 60% of attorneys in the United States have some malpractice coverage; and

WHEREAS, many malpractice policies do not cover illegal activities such as fraud or theft, and in cases where an attorney does not have malpractice coverage at all, it is possible that the injured client has no remedy; now, therefore, be it

RESOLVED by the House of Delegates, That the Supreme Court of Virginia and the Virginia State Bar be encouraged to consider the problem of uninsured attorneys. The Supreme Court of Virginia and the Virginia State Bar shall further consider some form of mandatory insurance for attorneys or an uninsured attorneys’ fund for client/victim compensation for malpractice committed by uninsured attorneys in the Commonwealth."

Virginia's new cable franchise law

I've been studying the new cable franchise law. It adds to the lexicon the concept of the "ordinance cable franchise."

This blog post analyzes the concept, with the implication that the new law is favorable to the telephone companies, whether for good or for ill.

This VML update has some history. It says, in part:

"Final compromise reached on cable TV competition bill

After more than a year of off-and-on negotiations, a final deal has been struck on legislation designed to promote competition in the cable television industry. HB 1404 (Griffith) and SB 706 (Stolle), identical bills that rewrite how cable TV will be offered and regulated in Virginia, will have a significant effect on many local governments.

. . .


Verizon began pushing for new rules in the 2005 session of the General Assembly. That bill failed, but discussions continued. VML negotiated with Verizon extensively during the 2005 session and into the fall of 2005. In the 2006 session two competing legislative proposals were introduced: one for Verizon and one for the cable TV industry. The four patrons of the bills put all of the industry representatives in a room with a mediator with the charge to develop a single proposal. Local governments were not allowed in the negotiations.

The results of the closed-door negotiations were SB 706 and HB 1404. VML and VACo started work on the bills once they were introduced at General Assembly committee meetings. The four patrons committed to receiving input from the two associations. VML and VACo solicited ideas from local governments and received about 20 suggested amendments. The associations drafted a joint set of amendments and presented them to the patrons and industry. During a meeting last week between industry representatives and VML and VACo, some 40 separate local government amendments were presented. Industry accepted many of the amendments and rejected others. Some were major and some were minor. The four patrons accepted all of the amendments to which the industry representatives agreed.

How the legislation works

The bill generally applies only when a business, usually a telephone company, comes to a locality to provide cable TV in competition with the existing cable operator. Prior to the time that a competitor comes to town, however, the only time the existing operator may use the provisions of the bill is when its franchise agreement is coming to an end or has ended. See Va. Code § 15.2-2108.30.

The existing company must continue to pay its franchise fees, as does the new company. In addition, the new company must pay additional fees so that its share of the total cost of public, educational and government access (PEG) programming and the cost of institutional networks (INET) are covered.

When the competitor comes to town, the locality enters negotiations for a franchise agreement. The agreement may not be more 'onerous' than the rules for the existing operators. (Va. Code § 15.2-2108.20.B) or that unreasonably prejudice either the new entrant or existing operator. This means that if an agreement is negotiated with the new company, the agreement will end up looking much like the existing franchise agreement.

To start the process, the new company files a request to negotiate a franchise. Then, it enters a too-short 45-day period of negotiations. The negotiations may go longer, but at the 46th day, the applicant may file notice that it will begin service in 30 days. Once that happens, the locality adopts a unilateral ordinance setting the rules. The ordinance terms are largely regulated by the new legislation. The process is set up so that the new company begins offering cable service without having received any authority to do so. The ordinance is retroactive to the date service began. The local government must adopt it within 120 days of the filing of the notice by the applicant."

The Northern Virginia Technology Council had this summary:

"These bills provide for a compromise measure which enables Verizon to enter local cable markets quicker while also seeking to provide a level competitive playing field for cable companies. Under the legislation, which now heads to Governor Kaine for his signature, localities would have 45 days to negotiate an agreement with Verizon and in the event an agreement is reached, cable providers would have the right to opt-in to the same terms and conditions as Verizon or to retain their existing agreements. In the event Verizon and a locality are unable to negotiate a deal and come to terms within 45 days, Verizon would be authorized to seek an "ordinance cable franchise" in which case Verizon could begin offering cable 30 days later and in which the case the locality would have 120 days to enact an ordinance that provides for Verizon's entry into the locality. The ordinance would have to extend terms and conditions comparable to those extended to the cable companies in regards to franchise fees, educational and governmental services, audits and reporting requirements, availability of the service to residents, rights of way fees and other provisions."

Thursday, April 20, 2006

Crime in Virginia 2005

Here on the Virginia State Police website is the report on Crime in Virginia 2005.

Shaggy dog and cat stories

In Florida, on the sentencing of a car thief, prosecutors argued as an aggravating factor that the car owner's dog was in the car when it was stolen. Doesn't this sound a little bit like that emotional distress for loss of dog case that was being reheard by the Virginia Supreme Court?

Near Roanoke, it says here that the Vinton library cat found a new home after it was evicted by the animal control officer from the public library; however, he "is still considered a symbolic part of the library staff."

Maryland U.S. Attorney said to be considered for Fourth Circuit

The Baltimore Sun reports here that U.S. Attorney Rod J. Rosenstein of the District of Maryland, age 41, is under consideration for nomination to the U.S. Court of Appeals for the Fourth Circuit, to fill the seat still vacant since the death of Baltimore's own Judge Francis Murnaghan.

The article says that Senators Sarbanes and Mikulski are opposed to Rosenstein as a candidate for the judgeship. It also says that Rosenstein was a member of the Federal Society at Harvard Law School. The most fun quote comes from pundit Professor Turley, who says: "The Justice Department is not going to put a public defender on that court."

The duck finds work for Pennsylvania Republicans

From Pennsylvania, it says here:

"The Republican State Committee is attempting to drive Democrat Senate candidate Robert P. Casey Jr. quackers.

After claiming for months that Casey has been ducking the issues in his race against GOP incumbent Sen. Rick Santorum of Penn Hills, the committee last week debuted 'Bobby the Duck.'

The duck -- a person dressed up in white feathers, bill and full fowl regalia -- was sent to Casey's Harrisburg office, apparently to pin the state treasurer down on a position or two."

Could this be the same Duck from last year's Kaine campaign? Has the Duck become an institution for campaigns everywhere? Has there been a long history of Ducks previously unknown to me?

On litter litigation

Rex Bowman has this report on Southwest Virginia localities plotting to sue the local litterbugs.

It says that Wise County has gotten some money judgments against litterers. Perhaps this makes their County Attorney Karen Mullins the most accomplished litter litigator among Southwest Virginia's local government attorneys.

This week's travelogue

On Wednesday, I traveled to Roanoke to fulfill the requirement of additional training with CM/ECF so I can get the pleadings filed in what few bankruptcy cases I have to come to me via e-mail, and so I can file a paper or two in the two recent adversary proceedings I've initiated. I can't say that this was worthwhile, because we don't generally file debtor cases, and most of the rest was (fortunately) on track with what we already know from e-filing in the District Court.

But, we did eat afterward at the New Yorker Deli, which now has this website.

On the religious exemption to the requirement of public school attendance

The Fredericksburg paper comments here on the state of the religious exemption from public school attendance in Virginia. The commentary begins:

"VIRGINIA LAW gives any school-age child a unique right: the right not to attend school.

If parents attest that it is against their faith to send their children to school, they can remove them without penalty or oversight. These children are religiously exempt from the state's compulsory attendance law. And unlike with home-schooled children, the state no longer monitors religiously exempt children's academic progress.

Some think the law is working just fine. Others say elected and school officials have abdicated their responsibility to children."

Monday, April 17, 2006

The 500 best judges?

Here is somebody's list of America's 500 best judges.

It includes the usual suspects from the federal courts of appeals, and a bunch of other men and women with whom I'm mostly unfamiliar. The trial judge closest to home who appears on this list is probably Judge Goodwin from the S.D.W.Va. or Judge Osteen of the W.D.N.C.

Last week's travelogue

There was not much blogging, but I did attend important 18-hole conferences here and here.

A client with whom I spoke on Thursday morning said she thought I was working until I unwisely half-covered the phone and started hollering to someone downstairs about the 10:50 tee time.

The only new place where we ate was Catch 22, which was a pretty good place, we'll add that to the list of the usual suspects.

This week in the Virginia Supreme Court

Looking at the current docket, there are many familiar names, including Steve Emmert (twice) and perhaps half a dozen Southwest Virginia cases.

THe case that has gotten continuing publicity is the Atkins case, on appeal from a jury verdict finding that he was not mentally retarded.

Sunday, April 16, 2006

Another federal judge from Southwest Virginia

In 1938, Congress added a second judgeship for the Western District of Virginia. President Roosevelt, in defiance of the prerogatives of Virginia's Senators Glass and Byrd, gave a recess appointment to Judge Floyd Roberts of the Corporation Court for the City of Bristol. In the next session of Congress, the U.S. Senate, in defiance of President Roosevelt, shot down the Roberts nomination by a vote of 72-9. In place of Roberts, Roosevelt appointed the dean of the University of Virginia law school, Armistead M. Dobie, who was shortly thereafter appointed and confirmed to sit on the Fourth Circuit.

Of the power struggle between the branches of government, Time magazine supposedly wrote this, in its February 13, 1939 edition:

"Senatorial courtesy is the custom by which Presidential appointees 'personally offensive or obnoxious' to Senators from their State are not confirmed by the Senate. Last week Virginia's tart old Carter Glass and his junior colleague, Harry Flood Byrd, found obnoxious the appointment of Judge Floyd Roberts of the Corporation Court of Bristol to a Federal District judgeship. Reason: he had 'lent himself to a conspiracy,' of which the other partners were Governor James H. Price and Franklin Roosevelt, to flout the Glass-Byrd patronage prerogative. The Judiciary Committee thumbs-downed Judge Roberts, 15-to-3. The Senate concurred, 72-to-9. Franklin Roosevelt promised to write Judge Roberts a right interesting letter before making another appointment. Snorted Carter Glass: 'I think he'll send up a more objectionable one—if he can find it.'"

Roger Groot Professionalism Award goes to Judge Turk

The Roanoke paper reports here that the Ted Dalton American Inn of Court has awarded the first annual Roger Groot Professionalism Award to Senior U.S. District Judge James C. Turk.

On freeware utilities

This page boasts of 300+ common problems solved with freeware utilities.

Some of them look interesting.

Governor Kaine takes on first clemency request

Howard Bashman has this post with links to this Richmond newspaper story and this Washington Post story about the first clemency petition in a death penalty case to hit the desk of Governor Kaine.

The Post quotes Kaine as saying during the campaign: "I'll enforce the death penalty. As governor, I'll carry out death sentences handed down by Virginia juries, because that's the law." As I wrote back then, talk of "enforcing" the death penalty makes no sense. The law gives a governor the power to do whatever he wants in granting clemency. Of course, during the campaign, and perhaps now, Kaine may have been listening to the political people in making his choice of words.

On sexual harassment and the UNC soccer team

In Jennings v. University of North Carolina, the Fourth Circuit in an opinion by District Judge Dever, joined by Judge Karen Williams with Judge Michael dissenting in part, affirmed summary judgment for the defendants in a case where a female soccer player at the University of North Carolina brought claims under Title IX and Section 1983 and North Carolina state law claiming that she was subjected to a hostile sexual environment on the soccer team.

Judge Dever wrote: "Laws prohibiting sexual harassment are designed to protect people at work and at school from the kind of extreme conduct that can make work or school hellish because of the person’s sex. The laws, however, are not designed to purge or punish all vulgarity at work or in universities. Whether conduct constitutes actionable sexual harassment cannot be divorced from the context in which the alleged harassment arose. Thus, a court evaluating a sexual harassment claim must examine the constellation of surrounding circumstances, expectations, and relationships."

Judge Michael agreed on the law but disagreed on the facts.

The case was filed in 1998, summary judgment granted in 2004.

The Daubert ruling on mold upheld in Roche v. Lincoln Property

In one of the wildest of reversal of fortune cases, that has gone to the Supreme Court and back, in the latest chapter of the Roche v. Lincoln Property case, the Fourth Circuit in an unpublished opinion by Judge Gregory, joined by Judge Widener and Judge Beam from the Eighth Circuit, held that the trial court did not err in the exclusion of the plaintiff's expert on the issue whether the mold caused the plaintiffs' respiratory ailments, and otherwise affirmed the summary judgment on the merits entered by the district court for the E.D. Va.

The opinion is full of interesting Virginia law issues, and should have been published, in my view.