Saturday, October 07, 2006

The California appeals court decision rejecting same-sex marriage

Here is the Marriage Cases decision from the intermediate appeals court in California.

The dissent quotes heavily from Justice Carrico's opinion in the Loving case, making the point that the majority's reliance on history is no more valid than what Justice Carrico wrote, which was overturned by the U.S. Supreme Court.

Worth reading is the concurring opinion, which says in part:

"I also write separately to identify a major difficulty with all attempts at reasoned dialogue about this subject. There is a legitimate and meaningful disagreement in this country, and in many places around the world today, about what marriage is and should be. Over the last 30 years we have seen a gradual reconfiguration of family; merging models of family exist alongside traditional models. We have also witnessed an expansion of personal freedom to express who one really is that is desirable if each person is to become who he or she was created to be. The roots of the disagreement over what marriage should be necessarily intertwine cultural, societal, and religious ideas. There is a great tendency, out of zeal to eliminate genuine inequities, to be swayed emotionally and to overreach in applying legal principles. My colleague has done so in his dissent. Justice Kline writes passionately of the “profound nature of the liberty interest” at stake (dis. opn., post at p. 47) and of “autonomy privacy,” (dis. opn., post at pp. 9, 22) but does not cite a single case where the asserted liberty or privacy interest has been identified as he would have us recognize. Most of the cases he relies upon are cases where the rights at issue have been discussed in the context of marriage as it has been understood historically, or in situations that criminalize acts of sexual intimacy. In the end the dissent advocates, from cases that do not lead inexorably to such a result, the existence of a fundamental right to participate in an institution that as historically defined excludes such individuals."

Give him six

Pirated from the James River football website, here is my wife's sister's son Matt running for a touchdown in a JV game against Matoaca.

Still no reinstatement in the W.D. Va. Sarbanes-Oxley employment case

In the latest opinion in Welch v. Cardinal Bankshares, Judge Conrad found yet again that the District Court has no jurisdiction to order the reinstatement of the plaintiff, until the Department of Labor issues a final order.

Who says those who can't do, blog?

Howard Bashman of How Appealing was the winning lawyer in this Sixth Circuit case.

The Bristol lawyer who argued the motion that was the subject of this report and recommendation by Magistrate Judge Sargent read the opinion yesterday on his birthday.

Private Property Rights Implementation Act of 2006

Not long ago the Fourth Circuit had that funky Charlottesville case, where the majority of the panel bought in the plaintiff's argument that the taking of her land was also a Fifth Amendment seizure. One reason for the plaintiff to make this argument, I thought, is that litigating a taking is difficult.

I've just now learned from this post that the House of Representatives has passed a bill that would make it easier for property owners to sue in federal court when government takes their property. I'm not sure whether this is a good thing, but it surely is interesting, although it may never pass the Senate. Some federal judges are probably opposed to it, not looking forward to a mess of cases claiming that the highway department exceeded its right-of-way by six inches.

The law professor blogger census

Here is a list of 309 law professors with blogs - including Ninomania, of Professor David Wagner at Regent, Richmond's Professor Spencer's federal procedure blog, and a reference that William & Mary's Professor Oman is one of the brains behind Concurring Opinions.

List of lawsuits against bloggers

This list of lawsuits against bloggers includes one from the W.D. Va., but does not mention the travails of Black Velvet Bruce Li.

Appellate judges who take campaign contributions always look bad when their contributors win

In Virginia, we don't have this problem.

We do sometimes have the problem of lawyers who are legislators appearing before the judges whose continued employment they control, but that is not so big a problem as what they've got in states where judges take money for their campaigns.

Friday, October 06, 2006

Judge Glen Williams, thirty years on the bench

Judge Williams of the Western District of Virginia was sworn in on October 12, 1976.

The General Assembly in their recent brief session approved this resolution honoring the judge for his years of service.

I have written many times about Judge Williams, for whom I clerked in 1989-1990, including these posts:

January 01, 2006
On lawyer humor before the Supreme Court

In this New York Times article about the recent study of the frequency of laughter attributed to the remarks of different U.S. Supreme Court justices, there is also the following on lawyer humor:

"Lawyers get laughs sometimes, too, but it is a dangerous business. In the guidebook the court provides to lawyers preparing to argue before it, there is this stern warning: 'Attempts at humor usually fall flat.'

Thomas C. Goldstein, a Washington lawyer who appears before the court frequently, said humor 'is a land mine.'

'You have to follow the justices' lead,' Mr. Goldstein said. 'You have to be a straight man.'

Lawyers confuse one justice with another surprisingly often, and those mix-ups are, of course, an opportunity for humor.

Last November, Sri Srinivasan, a government lawyer, apologized to Justice David H. Souter for referring to him as Justice Scalia.

'Thank you,' Justice Souter said, with characteristic self-deprecation, 'but apologize to him.'"

My favorite of the name mix-ups is still from the oral argument in Bush v. Gore. See pages 33-35 of this transcript, concluding with "Mr. Klock - I'm Scalia."

A few memorable times I've heard lawyers or witnesses before Judge Williams tell a joke to make a point. At one key juncture in an important hearing, the witness asked the judge if he could tell about a cartoon he'd seen to make his point. "Well, all right," said the judge. "But it had better be a good one."

The first time I saw a lawyer make a joke and pull it off with some panache, the lawyer was a fine fellow named Michael J. Passino from Nashville, explaining why the United Mine Workers had tried yet again during the Pittston strike to remove the case before Judge McGlothlin to federal court. His name popped in my head the other day as I was walking back along Union Street after the Music City Bowl. I retold his joke for about the 100th time (over the past 15 years) as we were driving back from the game. He didn't win the motion, but he made an impression on me.

January 30, 2005
Another Judy Jagdmann story

The Kingsport paper has this mostly-fun story about the next Attorney General of Virginia, who will be sworn in this week by her father, who is quoted at some length in the article.

The article says that Judge Williams was so excited when he learned of Ms. Jagdmann's confirmation that he picked up the tab for his colleagues. I interpret this to mean that he ordered peach cobbler for everyone.

January 18, 2005
Chief Judge Jones denies appeal of remand order in bankruptcy case

In Appalachian Power Co., Inc. v. Sprinkle, Chief Judge Jones agreed with Judge Stone of the bankruptcy court that the debtor's lawsuit against the power company should be remanded to Smyth County.

The debtor was claiming somehow that his cows have been harmed by the power lines.

The argument for and against the remand mostly had to do with whether the case would be resolved quicker in state or federal court.

I'm guessing that claims for injuries to cows from power lines might end quicker in federal court, but that reminds me of another oft-told tale:

Years ago, I went up to Clintwood and met Leslie Mullins, the Wise County lawyer from the firm that produced all those judges, and he found out who I was and that I had worked for Judge Williams and he proceeded to tell me that way back when a fellow had come to his office claiming that he owned the world's best milk-producing goat, a five-titted goat, and it had been injured and the man wanted to bring a lawsuit not only for the lost production but also for the goat's emotional pain and suffering.

Mr. Mullins replied that he could not help the man, but there was a new lawyer down in Jonesville named Glen Williams, and five-titted goat cases were his specialty.

Such a story must be true, who could make up a thing like that, and so maybe the power company filed their notice of removal hoping to draw Judge Williams for the case, due to his expertise.

November 11, 2004

Judge Williams awards attorneys' fees in the Doe v. Chao litigation

In Doe v. Chao, Senior Judge Williams of the W.D. Va. awarded attorneys to the lawyers who took the case to the U.S. Supreme Court, for their efforts on behalf of the one plaintiff who was a winner in the case.

The last time I tried to figure this case out, I blew it completely, so I won't try to explain what happened.

October 17, 2004
Rewriting the history of the Pittston strike

This article from Workers World offers the following account of the takeover of the Moss 3 prep plant:

"On Sept. 17, 1989, the UMWA had seized the property of the Pittston Coal Co.'s Moss 3 preparation plant in Carbo, Va. Ninety-eight miners and a minister, outfitted in camouflage, pushed aside shocked Vance security guards and occupied the property. A giant spotlight propelled by a generator focused on the Pittston walls, where a giant sign spelled out 'United Mine Workers of America.' When the light went on, over 200 miners and supporters cheered and thousands more came forward to bar state police from entering the grounds.

Cecil Roberts, then vice president of the UMWA, addressed the crowd: 'Welcome to ... class warfare in southwestern Virginia.' For over three days they held the property, until Pittston agreed to a contract protecting jobs and other benefits. Pittston feared that the miners were planning to run the Moss 3 plant."

My understanding is that the strikers left the plant because of Judge Williams' orders of September 20 and 21, 1989, and that the strike continued through the winter and did not formally end until February 1990. See generally Clark v. International Union, UMWA, 752 F. Supp. 1291 (W.D. Va. 1990).

September 10, 2004

How to apply for a federal judge clerkship

Law Dork @ Ohio State has this post on what he went through to apply for federal judge clerkships.

I don't know anything about this any more, but I know better now than I knew when I was in law school that the best thing in the world is a federal judge clerkship, especially for a district court judge. My clerkship was sort of like high school or college - a relatively short period of time, of which many, many tales have been told. A few years back, I gave a little speech about my judge, and how working for him has affected me, and I finished with these words (at the risk of quoting myself, yet again):

"The author Scott Turow in one of his lawyer books has a character, a woman, describe the relationship between a lawyer and the judge for whom he or she clerked, and she said that just as a race horse is always known by its sire and dam, the lawyer is known by his or her judge. Like that character in the book, it is my proudest heritage in the law, that I will be known always as a Judge Williams clerk."

November 05, 2003
What does it mean when your sister discovers your web log?

I was over at Duffield today and had lunch with my sister Joan, who says she has now seen my Blogger site. You can discover her firm's website at this link - she is in the business of helping people and firms apply for grants, among other things. She was telling me also about some concert in Clintwood where there was no dancing, maybe the rule there is like the ordinance in nearby Pound, about which Judge Williams wrote: "It has been said that life imitates art. In a scene more than slightly reminiscent of the 1984 Academy Award-nominated movie Footloose, in which a small town outlaws dancing, the Town of Pound, Virginia, enacted Chapter 22 of the Town of Pound Ordinance, §§ 127-138, . . . prohibiting the allowance of dancing in any place open to the general public without first obtaining a permit for the operation of such a place." Elam v. Bolling, 53 F. Supp. 2d 854, 855-56 (W.D. Va. 1999).

August 13, 2003
Waiver and limitations bar claim for death in charity bike ride

The Washington Post has this article on the ruling by D.D.C. Judge Rosemary Collyer against the claims of the representatives of a woman who died as the result of her participation in a bike ride, because she had signed a written waiver as to some claims and others were barred by the Virginia statute of limitations.

When I was a law clerk, Judge Collyer, then a lawyer with Crowell & Moring, appeared in a case in Big Stone Gap, on the interesting issue of whether the special commissioners who were attempting to collect the contempt fines imposed by Judge McGlothlin of the Circuit Court of Russell County in enforcement of his injunction against strike misconduct by the United Mine Workers could garnish the dues collected by employers for union members under pursuant to the check off requirement in their collective bargaining agreements with the Mine Workers. (Judge Jones was representing the special commissioners, Ms. Collyer and some other lawyer were there for the employers, opposing the garnishment.) So far as I recall, Judge Williams never ruled on this issue, which was a good idea, since the state court contempt fines were ultimately thrown out by the Supreme Court of the United States.

July 04, 2003
Circuit Court Judge John Kilgore

The Kingsport Times-News has this report on the swearing-in of John Kilgore as the new judge for the 30th Judicial Circuit, which includes Lee, Scott, and Wise Counties in Virginia. Judge Kilgore, among other things, served as a law clerk for U.S. District Judge Glen Williams, who was unable to attend the event. Judge Birg Sergent explained the circumstances of Judge Williams' absence, and waved a bundle of papers, stating that he had in written form the text of the hour-long speech Judge Williams would have given had he been there.

In Senator Wampler's remarks yesterday, he noted that he missed the last swearing-in at the same courthouse, for J&DR District Court Judge James Mickey Shull, because of scheduling conflict, which led Judge Stump to interject from the bench, "We heard you were at the NASCAR race." Sen. Wampler replied, "A senator's duties are many."

June 15, 2003
Appalachian League baseball superlatives include the W.D. Va.'s best-ever baseball case

The appeal of baseball in the Appalachian League, a short-season rookie league at the lowest rung of the minor league ladder, is explained in this commentary from the Bluefield newspaper.

The Bluefield Orioles were once the subject of a lawsuit in federal court in the W.D. Va., which resulted in a published opinion by Judge Williams, a huge baseball fan, with this memorable statement of the facts:

"Simmons, along with a friend, attended the Fourth of July, 1988 game between the Martinsville Phillies and the Bluefield Orioles, a Baltimore farm team, at Bluefield, Virginia. Bluefield was not having a good year, and whether for this or some other reason Simmons moved down to the third baseline along about the eighth inning, and started to heckle the Oriole players sitting in the bullpen. Champ stated in his deposition that Simmons was accusing the ballplayers of stealing the local women, and that he (Simmons) would show the Orioles what West Virginia manhood was like by blowing the players' heads off. Whatever was precisely said, the pitching coach then asked Simmons to leave.
After the game (Bluefield lost, 9-8, stranding three runners in the bottom of the ninth), Champ encountered Simmons in the parking lot. Simmons, in his complaint, offers no details of what ensued other than that he was punched and kicked by Champ and then hit in the jaw by a baseball bat wielded by Hicks, causing his jaw to be broken in two places. Champ's version was that Simmons saw him carrying a bat, made a gesture as if he were shooting Champ with his finger, and said "Oh, so you need a bat, huh?" Champ said "No, I don't," and threw his bat down. Simmons gestured toward his car and said, "Let's go over to my car, and I'll blow your head off." Another player tried to intervene, and Champ said "Just get out of here." Simmons then advanced threateningly upon him, and Champ hit Simmons in the face. Simmons was unfazed, and Champ kicked him in the chest, causing Simmons to stagger back. According to Champ he then smiled and said "I'm drunk. I didn't feel that." Champ turned to walk away, and at that point defendant Hicks hit Simmons. Simmons says Hicks hit him with a bat, but Hicks says that he used only his fist. Hicks had not been near any of the heckling and says he intervened because he was afraid Simmons was about to pull a gun on Champ."

Simmons v. Baltimore Orioles, Inc., 712 F. Supp. 79, 80 (W.D. Va. 1989).

The Bristol franchise is now the Bristol White Sox. One of the great feats in professional baseball involved a minor league team from Bristol, when Ron Necciai struck out 27 in a game in 1952, as described in this story.

June 09, 2003
Sale of Lynch mine in KY did not violate successorship clause of UMWA agreement

The Lynch mines across the mountain from SW VA in Kentucky, originally owned by United States Steel Corporation, and most owned by subsidiaries of Arch Coal, are the subject of this opinion from the Sixth Circuit, which affirms the trial court's decision to grant summary judgment against the United Mine Workers of America on their claims that the last seller violated the successorship clause of the 1998 NBCWA by not imposing successorship obligations on the last buyer. The language of the contract requires the employer to make sure that all of its "operations" are sold without a proviso that the buyer will recognize the union. The Sixth Circuit concluded, like others before it, that closed mines were not "operations" covered by the successorship clause.

One of the cases cited by the union in their argument was International Union, UMWA v. Eastover Mining Co., 603 F. Supp. 1038 (W.D. Va. 1985), an opinion by Judge Williams which has since been overruled by the Fourth Circuit, as it allowed a breach of collecting bargaining agreement against a non-party to the agreement, which made it a popular decision with the UMWA.

June 03, 2003
"Say Appal-ach-a, and give this native something to cheer"

Amy Clark has this column a while back in the Sunday paper about the correct pronounciation of "Appalachia."

Judge Williams gave a speech once which included a story on the same theme about his friend Henry Kegley from Bristol, who was watching the Today Show one morning and heard Willard Scott say apple-LAY-cha. So, the story goes, Kegley called Willard in New York City and told him this: "If I threw you an apple, I'd say 'apple-at-cha.' Remember it that way." Some time later, Kegley heard that Willard Scott was coming to the Tri-Cities, so he went to see him at the airport. Approaching Mr. Scott, Kegley tossed him an apple. Willard caught it and said, "you must be Henry Kegley from Bristol."

May 24, 2003
Judge Williams to speak at dedication of Lee County war memorial

A memorial to honor the 197 Lee Countians who died fighting for the United States will be dedicated this weekend, as described in this report, which notes that federal judge Glen Williams, who served in the U.S. Navy during World War II, will be the guest speaker.

Judge Williams enlisted in the Navy and went to New York City for accelerated officer training, where one of his roommates in the dormitories at Columbia was the future author Herman Wouk (along with some others whose last names started with 'W'). Some of their experiences were retold in Wouk's novel The Caine Mutiny, which was made into the movie with Humphrey Bogart, Jose Ferrer, Van Johnson, and Fred MacMurray. (I think it was remade some time after that, but the original movie is still the best.)

Judge Williams tells stories about his experience in the Navy all the time, but in fits and starts, so I have probably heard part of 100 different stories from his war experiences. One of the most ridiculous and most easily retold is this one: in the officer training school, all of the cadet officers were from Yale, including Cyrus Vance, who was later Secretary of State under President Carter. Before the training was over, the enrollees did an amateur theatrical production, in which all of the officers admitted that they were not actually from Yale - Judge Williams' line that he was not from Yale, he was in jail, but it was in Sweden where they pronounced it like "yale."

April 12, 2003

First amendment claim of Tennessee deputy dismissed in E.D. Tenn.

The Kingsport Times reports here on the dismissal of the First Amendment lawsuit of a Tennessee deputy sheriff who claimed he was discharged for speaking in favor of the candidacy of the incumbent sheriff's opponent.

On the Virginia side, particularly before Judge Williams of the W.D. Va. (who has ruled on the issue at least twice), and even more particularly since the Fourth Circuit's ruling in the Jenkins v. Medford, deputies with law-enforcement responsibilities are apparently fair game for political terminations. Arguably, the same outcome obtains, regardless of whether the deputy proceeds on a "freedom of speech" theory or a "freedom of association" theory.

March 16, 2003

This editorial concludes that Virginia ought to allow further testing of the DNA evidence in the Roger Coleman murder case. Coleman was convicted in Buchanan County, sentenced to death, and executed after his habeas corpus efforts were denied. Judge Nicholoas Persin presided over the trial, Judge Glen Williams heard the federal habeas petition. The case is the subject of this book by John Tucker, spouse of William & Mary law professor Jayne Barnard. As reported here, a New Jersey group has petitioned Governor Warner to allow further DNA testing.

Mr. Coleman was convicted in 1982 and executed in 1992. In denying habeas relief, Judge Williams observed that post-conviction DNA analysis by noted expert Edward Blake (best known for his role in the O.J. case) in 1990 added to, rather than contradicted, the evidence of Coleman's guilt. Dr. Blake and others now contend that further testing of samples retained by Blake using more modern techniques would prove that Coleman was innocent, as reported here.

Thursday, October 05, 2006

Interesting disagreement between Judge Duncan and Judge Gregory

In Buckner v. Polk, Judge Gregory dissented from the denial of rehearing en banc, and Judge Duncan wrote to elaborate further on the panel decision, where the decision involved the obligation of defense counsel to investigate the mental health of a defendant in a death penalty case.

Evidently, Judge Gregory is seeing something in the facts that others do not, as Chief Judge Wilkins and Judges Widener, Wilkinson, Niemeyer, Williams, Michael, Motz, Traxler, King, Shedd, and Duncan voted to deny rehearing en banc. Judge Gregory cites, among other things, the American Bar Association Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, in effect at the time of the petitioner's trial. I would not have thought that these guidelines were promulgated for the purpose of stating the measure of whether the defendant that to which he is entitled under the Sixth Amendment.

Tomorrow I'll be 42

At 42, I'll be the same age as Elvis when he died, the same age as Theodore Roosevelt when he became president, but still young enough to join the Army.

A note from my dad

Dad wrote this of one of his long-time colleagues, whose name I saw in the obituaries today in the Bristol paper:

"Tom Fawley had a heart attack and passed away this morning in Lincoln, NM.
He and Betty had driven there in his restored '55 Chevy pickup. On their
way there, they had visited the original owner of the truck in Colorado and
had driven to the top of Pike's Peak. Tom had tracked down and visited the
original owner of the truck on a previous (plane) trip. Tom and Betty had
visited with Tony and Mae Brewer in Albuquerque Monday night. Mae said that
Tom was very happy and excited to tell about his trip thus far. (Tom was
considering making this trip when he retired ... in May, 2005.) The
things Tom wanted to do most on this trip were to visit the original owner
of the truck, to drive up Pike's Peak and to sleep where Billy The Kid
slept. He slept his last night where Billy The Kid slept at what is now a
Bed and Breakfast Inn in Lincoln, NM."

Wednesday, October 04, 2006

Judge Williams lets errant e-filer off the hook

In Cornett v. Weisenburger, Judge Williams of the W.D. Va. concluded that the plaintiff's counsel's efforts to file a complaint on the last day of the statute of limitations period were good enough, while expressing his view of local rules in general.

He wrote:

"The United States District Court for the Western District of Virginia has never imposed upon attorneys a set of local rules that circumvent the spirit of the Federal Rules. The court has always liberalized its interpretation of the Federal Rules of Civil Procedure to the extent that litigants are authorized to use the court to pursue the ends of justice. Just like this court’s long-standing interpretation and utilization of Rule 6(b), which allows any time period prescribed by the rules to be enlarged at the court’s discretion, the court can enlarge a local rule, in a manner consistent with the Federal Rules, to prevent injustice and allow the parties to proceed on the merits. . . .

When Rules 5(e) and 83(a)(2) are read in conjunction, it is evident that the Clerk cannot refuse to accept a filing merely because it is in improper form and a local rule of form cannot be enforced in a way that denies a party’s rights. Instead a judge must decide if the local rule should be put aside and if the complaint should be treated as properly filed. This court has never used a inadvertent mistake by an attorney to penalize an innocent litigant, especially a litigant who is already disadvantaged."

We're No. 3

It says here that the golf team of Roy Jessee, Will Kimbler, Mitch Mobley, Joe Chadwell, and Steve Minor took third place (out of three?) in the lamest flight of the afternoon round of the Appalachian School of Law Gala, Silent Auction and Golf Tournament at Willowbrook in August.

Monday, October 02, 2006

This just seems stupid to me

This article about the ruling in Massachusetts that same-sex couples from Rhode Island can marry in Massachusetts, even though they can't marry in Rhode Island, because the ban on same-sex marriage under Rhode Island law is not sufficiently bold and broad, seems to be playing into the hands of the people who support such action as the same-sex marriage amendment in Virginia.

I question what could the proposed Virginia amendment do to make Virginia law any clearer than it is that same-sex marriage is prohibited, but the way this latest case has played out, it suggests that a state cannot do too much to express its public policy against same-sex marriage.

So, what motivates this kamikaze litigation in Massachusetts, which is not binding on anyone or anything in Rhode Island? I guess the Rhode Island couples headed to Massachusetts would have to answer that one, but it won't do their peers in Virginia any good in November. And there in Rhode Island, "opponents of same-sex marriage, including the Diocese of Providence, are hoping the ruling will spur Rhode Island to pass a law defining marriage as a union of a man and a woman."

UPDATE: This fellow has beaten me to the punch, in making this connection.

Sunday, October 01, 2006

That Charlottesville seizure case

Maybe the plaintiff in Presley v. Charlottesville has figured out the way around the vagueries of takings law - articulate the taking of your property as a Fourth Amendment seizure.

I don't really know what to make of this opinion, and neither do the readers of this Volokh post about the case.

Fed. Cir. sits in Charlotteville on Tuesday

The United States Court of Appeals for the Federal Circuit will be hearing oral argument at the University of Virginia law school on October 3, according to this press release, with links to the briefs in the cases to be argued.

Certworthy Summer 2006 edition

Here Ray Ward has posted the latest edition of the newsletter of the DRI Appellate Advocacy committee, for which newsletter I am the Fourth Circuit correspondent. Once again, the articles are outstanding.