Saturday, July 08, 2006

On the Goose and Gander rule as a bulwark of due process in our system of ordered liberty

In the case of U.S. v. Mackey, Magistrate Judge Urbanski of the W.D. Va. refused to reconsider his prior ruling that the Virginia law on filing of a certificate of analysis in a DUI case does not apply to a federal drunk driving case, notwithstanding the defendant's argument that "to hold otherwise violates the 'Goose and Gander Rule,'" but actually I think he was trying to argue the "Bitter with the Sweet" Rule.

Just trying to think like a macaque

The Roanoke monkey story has become even bigger than the Charlottesville cow story.

I mean, how many Southwest Virginia macaque droppings stories have you read?

Securing those MS Word and PDF files

Howard Bashman has spotted this worthwhile article straight from Adobe, titled "Redaction of Confidential Information in Electronic Documents," with the subtitle "How to safely remove sensitive information from Microsoft Word documents and PDF Documents using Adobe Acrobat."

Friday, July 07, 2006

Looking for acorns

ConfirmThem links to the speculations of some who are getting excited again thinking about the retirement of another Supreme Court justice.

The only 86 year-old President Ford appointee to the federal bench I know has no plans to quit, if that counts as evidence to the contrary.

Judge Turk denies motions to overturn criminal conviction of Lynchburg mayor

The Lynchburg paper reports here that Judge Turk has refused the post-trial motions challenging the conviction of the fellow who is or was the mayor of Lynchburg.

Objecting to song lyrics

Yesterday's Buchmeyer was about one lawyer objecting to the other's reference to the lyrics of an Elvis song.

Well, we once had opposing counsel cite a George Jones song, noting that "Mr. Jones sang that." I would have objected, but I was unsure how many of the jurors might be George Jones fans. Some of them might have never heard of George Jones.

On the investiture of Judge Bolt

The Galax paper has this report on the swearing-in of Judge J.D. Bolt as a new judge of the 27th District. The article says: "The 27th District has the highest caseload per judge in the state."

On George Wythe

Among the many recent articles on the signers of the Declaration of Independence, here is one on George Wythe, for whom along with John Marshall the law school at Williamsburg is or was named. It says Wythe became a lawyer at age 20.

Model standards of conduct for mediators

I never knew it, but it figures that the ABA has a set of model standards of conduct for mediators.

The Futures Commission

The Commission on Virginia Courts in the 21st Century has a page on the Virginia judiciary website, with a link to its 131 pages of preliminary recommendations. The website also lists the members of the Commission and its various task forces. There are some strong, no-nonsense names on those lists, of the people that I know.

One of the preliminary recommendations is: "The constitutional office of Clerk of the Circuit Court should be eliminated. In its place, each Circuit Court should appoint a court administrator to perform all of the duties currently performed by the Clerk of the Circuit Court." At the public hearing in Abingdon last night, two of the clerks of court explained their opposition to this recommendation.

Another one of the recommendations is:

"Virginia has an outstanding judiciary. It is vitally important to maintain public confidence in the quality and integrity of Virginia’s courts. To ensure Virginia continues to have men and women of the highest quality serve on the bench, it is recommended:

(1) For election to statewide courts:
(a) The General Assembly should appoint a Judicial Nominations
Commission (JNC) which reflects the diversity of the Commonwealth.
The members of the JNC shall include the Presidents (or their designees)
of the Virginia State Bar and such voluntary statewide bar associations as
may be selected by the General Assembly and members of the public.
(b) The JNC shall evaluate candidates according to standards and criteria
which shall include:
1. Integrity;
2. Legal knowledge and ability;
3. Professional experience;
4. Judicial temperament; and
5. Such other factors as the General Assembly may consider
(c) For each vacancy, the JNC shall submit to the General Assembly the
names of more than one candidate deemed 'qualified' or 'well
qualified.' The General Assembly should elect judges from the slate
submitted by the JNC.
(2) For election to trial courts:
(a) The process of electing trial court judges should reflect the particular
circumstances and needs of each jurisdiction.
(b) In every jurisdiction, the administration of justice benefits when the
selection process includes input from the local legal community and the
public. Therefore, local bar associations should communicate with their
legislators to establish a process by which the local legal community may
assist the General Assembly in identifying the best qualified candidates.
(3) For reelection: In order to preserve judicial independence, judges should be
reelected unless there are compelling non-political reasons not to reelect."

Thursday, July 06, 2006

New York's highest court rejects same-sex marriage claims

Here is the opinion from the Court of Appeals in New York, which came down against the marriage applicants, despite many predictions to the contrary in yesterday's press.

Such rulings should work against constitutional amendments such as that on the Virginia ballot in the fall, which was targeted at what legislators perceive as the rogue courts in Massachusetts and elsewhere. The appeals court in Massachusetts reached the opposite conclusion in the Goodridge case in 2003.

Tuesday, July 04, 2006

The July 4 session of the U.S. District for the W.D. Va.

Rick Sincere has this delightful report on the naturalization ceremony presided over by Chief Judge Jones at Monticello earlier today.

Rick wrote that Judge Jones spoke of how much the late Judge Michael enjoyed this annual occasion. I'm betting that Judge Jones enjoys it quite a bit himself.

Will Governor Kaine exonerate a convicted witch?

The Washington Times reports here that the Governor will be asked for somewhat post-judgment relief in the case of "Virginia's only convicted witch tried by water" - in 1706.

I can't recall whether the candidates in last year's campaign made any promises about executive clemency as applied to witches.

Colonial Williamsburg begins podcasting

Here is a story reporting that Colonial Williamsburg now offers a way for the tourists wandering about the neighborhood around Duke of Gloucester Street to get the knowledge by way of their portable audio players.

Massey sues court reporter in West Virginia

The West Virginia Record reports here that the A.T. Massey Coal bunch has filed suit in federal court against a court reporter who botched the recording of the trial of the Harman Mining case in Boone County. The court reporter is alleged to be the "official" court reporter for the Court, and so the case is filed as a constitutional claim under 42 U.S.C. 1983.

The story says in part:

"A seven-week trial began in May 2002 in Boone County Circuit Court, and it ended on Aug. 1, 2002. The jury ruled against Massey, which was ordered to pay more than $50 million in damages.

In its complaint, Massey says it filed post-trial motions on Aug. 30, 2002. Circuit Judge Jay Hoke entered a final order overruling Massey's motions on March 15, 2005.

On April 14, 2005, Massey filed a request for an appellate transcript and paid $10,000, the amount required by Meadows to have the transcript completed.

On May 12, 2005, Hoke granted Massey an extension until Sept. 16, 2005, to file its appeal "based on the fact that Ms. Meadows represented that she was having difficulty completing the transcript."

On Sept. 8, 2005, the state Supreme Court of Appeals gave Massey another extension through Jan. 1, 2006, to appeal after Meadows again said 'her work load prevented her from completing the transcript.'

After Meadows again was unable to produce any of the transcript, Massey asked the administrative office of the state Supreme Court to investigate.

That investigation, the complaint says, 'revealed that Ms. Meadows was not too busy to complete the transcript, but had intentionally misrepresented her ability to produce a transcript.'

'The investigation established that she had corrupt computer files, poor quality notes, faulty equipment, and had engaged in a practice of not recording or transcribing significant portions of the trial including the pre-trial conference, the jury voir dire, opening statements, and a significant number of the bench conferences,' the complaint states.

Massey says no Stenomask tapes are available for any of the trial.

'The July audiotapes that are available are from a recording device with a single microphone placed on the witness stand,' the complaint states. 'As a result, the tape is substantially inaudible any time the witness or an attorney turns away from the microphone, when a bench conference occurs, or when there is any commotion or disturbance in the courtroom.

'The total absence of the Stenomask recordings make it impossible to determine what occurred during the inaudible portions of the only available audiotapes.'

On Dec. 12, 2005, and March 2, 2006, the state Supreme Court granted two more extensions for Massey to appeal to allow the Court's administrative office to seek independent court reporters to produce the transcript.

Massey says an 'incomplete and inaccurate copy of the purported trial transcript was produced in piecemeal fashion over a period of several months' with the final portion provided on May 11, 2006.

The company says three days of the 32 trial days have no transcript. That includes jury voir dire and jury selection. It also says substantial portions of six days also have no transcript.

In addition, Massey says the provided transcript has 'countless errors,' 'significant gaps' and 'un-quantified, un-transcribed' portions of the trial resulting from 'computer malfunction' and/or 'computer blackout.'

Massey says about 25 percent of the proceedings are missing or unintelligible.

'Due to the length of time that has passed since the trial, the failure of the court reporter to provide a trial transcript, and the failure of the subsequent reporters retained by the West Virginia Supreme Court of Appeals to produce a usable transcript, Massey has been denied its due process right to prosecute an appeal of the trial court's verdict,' the complaint states.

That, Massey says, is a violation of the 14th Amendment of the United States Constitution and Article 3 of West Virginia's Constitution.

. . .

Commenting on Meadows individually, Massey's complaint says the state Supreme Court investigation showed she 'intentionally and materially misrepresented the status of the transcript.'

It also says Meadows had a duty to take full shorthand notes of the proceedings.

Her 'intentional wrongful conduct resulted in excessive delays and a failure to produce a complete and accurate transcript of the lower court proceedings,' the complaint states. 'Because of the delay and the errors and omissions in the alleged transcript, that render it utterly worthless for the purposes of prosecuting an appeal, Massey has suffered substantial financial damages.'

That includes Massey having to post a letter of credit for $55 million - the jury award plus one year's worth of interest - on July 16, 2003. That letter of credit, the suit says, renews automatically and remains in place.

Plus, as delays piled up, Caperton filed a motion asking the security be raised to $72 million. That, however, later was stayed by the state Supreme Court.

Massey secured the $55 letter of credit by borrowing nearly $58 million and placing it in a restricted account. The suit says Massey has paid and will continue to pay interest on that amount until the underlying case is resolved. Also, Massey has a letter of credit fee of $275,000 annually it incurs until the case is resolved.

'Massey has suffered and continues to suffer damages of approximately at least $13,709 per day in the form of post-judgment interest,' the complaint states."

Monday, July 03, 2006

Pretext laid bare

In Forrester v. Rauland-Borg Corp., Judge Posner debunks dicta from employment discrimination cases to the effect that an employer's profferred non-discriminatory reason for the employment action against the plaintiff cannot be disproved by evidence or argument that it was "insufficient to motivate" the action.

Judge Posner explains:

"If it was insufficient to motivate the action, either this means that it didn’t motivate it, or that it shouldn’t have motivated it. If the first is the intended sense, the dictum is just a murky way of saying that the stated reason was not the real reason. If the second sense is the one intended, then the dictum is wrong because the question is never whether the employer was mistaken, cruel, unethical, out of his head, or downright irrational in taking the action for the stated reason, but simply whether the stated reason was his reason: not a good reason, but the true reason."

Fourth Circuit upholds preliminary injunction allowing UMWA as miners' representative in Sago Mine investigation

In United States Department of Labor v. Wolf Run Mining Company, Inc., the Fourth Circuit in an opinion by Judge Niemeyer, joined by Judges Shedd and Duncan, affirmed the district court's entry of a preliminary injunction sought by the Department of Labor to allow the United Mine Workers to participate in the investigation of the Sago Mine accident as the anonymously-designated representative of 2 of the 97 miners.

The company argued that it received insufficient notice that the Court was going to issue a preliminary injunction, as opposed to a temporary restraining order, and that on the merits, the Department was unlikely to succeed, for various reasons, including the argument that allowing the UMWA to participate would in some sense violate the National Labor Relations Act. The appeals court rejected the notice argument, and concluded that "even though the anonymous designation of miners’ representatives raises a serious legal question that has not been decided in the courts," the District Court did not abuse its discretion in granting the preliminary injunction.

That Charlottesville cow

I've been reading about the cow that lit out for the golf course in Charlottesville.

I'm assuming it went to Meadowbrook because it knew it would never be admitted at Farmington.

I'll lose my union card over this

Luskin says here that the people (like me) who think Senator Stevens' account of the Internet is laughable are his "unscrupulous political opponents," as the advocates of that "left-wing horror known as 'Net Neutrality,'" and that Stevens was actually telling the straight scoop.

This could get me booted from the ODBA, if nothing else. Let's go all the way and point out the links here (via Instapundit) and here, with graphic illustrations of Senator Stevens' remarks. All this talk of "the tubes" reminds me that you can see videos of The Tubes and other '80's bands at this site - but don't all go there at once or the tubes will be clogged.

Here is the Slashdot discussion on the Ted Stevens' "Internet is not a truck" remarks.

UPDATE: Here's another "tubes" image at BoingBoing.

Sunday, July 02, 2006

Virginia city sues to escape PSA contract over out-of-state trash

The Norfolk paper reports here that Chesapeake has filed suit to get out of its contract with the Southeastern Public Service Authority, and it seeks among other things to obtain a declaration that the SPSA has no authority to be taking in trash from out-of-state.

On the wind power project in Highland County

The Richmond paper reports here and the Roanoke paper reports here on the latest squirmishes in the battle over the controversial wind power project in Highland County.

I never seem to read about how environmentalists or conservationists are fighting in support of this project. The only ones I've read about are against it.

That time of the year

Here are articles on the new Virginia laws from the Norfolk paper, the Newport News paper, and the Washington Times.

On the last week of Judge Elliott

The Norfolk paper had this interesting article on the retirement of Judge Elliott, who concluded his tim on the General District Court bench in Portsmouth, and who was the subject of a recent Virginia Supreme Court case.

The article concludes:

"He planned to get a haircut Friday, maybe see his mom. But there would not be a celebration of how Elliott came to retire.

Being a judge used to be fun, he said."

Tablet PCs required for new Tech engineering students

This CNet story describes the new requirement for the use of Tablet PCs by all new engineering students at Virginia Tech.

I'm not sure that I've ever actually seen a Tablet PC.

The enemies of thought

Ray Ward has this interesting post with links to an article speculating that blogs are the friends of information but enemies of thought.

Of course, blog posts take more thought than most of the e-mails I get. We're in the process of getting Treos in our office - talk about your enemies of thought. With all due respect to the big-city lawyers and clients with whom I correspond, I'm not sure that I've ever learned much from anything written by means of a Blackberry or like device. (But, such devices have enabled them to ponder my own insightful prose as they sit in airports, taxi cabs, and such.)

Expert testimony on breach of fiduciary duty

Blog 702 has this post about the unpublished Fourth Circuit opinion in Parmenter v. Rollins Financial Counseling Inc., which allowed expert testimony in case involving breach of fiduciary duty.

A bear story

From Knoxville, via Michael Silence, I see this, titled "Bears v. Idiots: Bears 0, Idiots 1."

Federal judge in Knoxville refuses to enjoin school's ban on Confederate symbols

The Knoxville paper reports here that Judge Varlan refused to impose a preliminary injunction against a Tennessee school system during the pendency of a lawsuit challenging its prohibition against students wearing clothes with symbols of the Confederacy.

On the Shady Valley Country Store

The Bristol paper wrote about Shady Valley, but left out the website for the Country Store.

Maybe Ted Stevens is the webmaster for the Bristol paper in his spare time. Theirs is still the worst website of all the Media General papers in Virginia, and the worst newspaper website of any in America I've seen.

On the retirement of Morgan Scott

The Roanoke paper has this article on the retirement of Morgan Scott from the U.S. Attorney's office. The article says that Julie Dudley will succeed him as first assistant.

The Roanoke paper takes on mountaintop mining

Here is an article with many links as the Roanoke paper makes a study of mountaintop mining, although it seems like it quickly moves to the broader topic of surface mining in general. It gives the appearance of balance by quoting both outraged friends of the Earth and the fellow from the Virginia Mining Association.

ADDENDUM: A while back, the AFP had this fellow's thoughts on coal, in a piece titled "Coal - the dirty secret behind the Information Age."

Ted Stevens, cyberdog extraordinaire

I've studied this post with the description by Senator Stevens (the infamous sponsor of the Road to Nowhere in Alaska and the truck lanes for I-81 in Virginia) of just how it is that the Internet works.

See what you can make of this:

"I just the other day got, an internet was sent by my staff at 10 o'clock in the morning on Friday and I just got it yesterday. Why?

Because it got tangled up with all these things going on the internet commercially.

So you want to talk about the consumer? Let's talk about you and me. We use this internet to communicate and we aren't using it for commercial purposes.

We aren't earning anything by going on that internet. Now I'm not saying you have to or you want to discrimnate against those people [...]

The regulatory approach is wrong. Your approach is regulatory in the sense that it says "No one can charge anyone for massively invading this world of the internet". No, I'm not finished. I want people to understand my position, I'm not going to take a lot of time. [?]

They want to deliver vast amounts of information over the internet. And again, the internet is not something you just dump something on. It's not a truck.

It's a series of tubes.

And if you don't understand those tubes can be filled and if they are filled, when you put your message in, it gets in line and its going to be delayed by anyone that puts into that tube enormous amounts of material, enormous amounts of material.

Now we have a separate Department of Defense internet now, did you know that?

Do you know why?

Because they have to have theirs delivered immediately. They can't afford getting delayed by other people."