Friday, December 01, 2006

Last look back at Commonwealth Conservative caption contests - my personal favorites

With both thumbs still upright, the finale of celebrity thumbwrestlemania was declared a draw.

When neither would agree to be the tail end, they both showed up only half-assed.

Overestimating the comic book literacy of the Blacksburg co-eds, he never understood the failure of what he thought was his best line: “If you like my Hulk, wait ’til I show you my Thing.”

Deciding what face to wear for rural voters, she chose the mule chewing briars.

After the Communists invaded Afghanistan, my original thought was to boycott the World Series, but then Mondale suggested the Olympics.

The whole gang on Easter Island loves the Reds.

In subsequent litigation, the manufacturer came to regret its advertising claim that the new model was great for cooking brats.

More on Chief Judge Wilkins taking senior status

Here are more articles on the "retirement" of Chief Judge William Wilkins of the Fourth Circuit:

From The State in South Carolina: Judge Wilkins stepping down

From the AP: Chief judge of 4th Circuit to step down

From the Richmond paper: Appeals court's chief judge to retire

The gossip at Southern Appeal is that Judge Wilkins plans to run for Governor of South Carolina, which sounds absurd to some of the commenters.

Time Magazine takes on the Derek Tice case

The Time article begins:

"Eight years ago, Derek Tice walked out onto his porch and found an entire swat team with all their guns pointed at him. He was convicted of murder, twice, in two separate trials, and sentenced to life in prison. To many observers in Norfolk, Virginia at the time, it had seemed like an open and shut case — a tape of Tice's own confession to the 1997 rape and murder of Navy newlywed Michelle Moore Bosko, 18, was played for the juries. But Tice and two other former Navy sailors convicted in the murder later insisted that they had fabricated the confessions after detectives had subjected them to harsh and manipulative questioning. The one other man convicted for the murder — and the only one whose DNA was linked to the crime — has since recanted his claim that the other men were involved and now insists that he acted alone. The whole argument may seem like a stretch — it certainly did and does to the victim's family — but on Wednesday a Virginia judge accepted enough of it to rule that detectives had not honored Tice's right to remain silent and overturned his sentence after almost a decade in custody."

UPDATE: The Washington Post has this editorial on the case.

Volokh on Miller-Jenkins

This Volokh post takes on the Virginia Court of Appeals' decision in the Miller-Jenkins case.

One of the commenters gets to the nub of the matter, as I see it:

"I am curious as well whether under Vermont law the child custody determination is considered an intrinsic claim/remedy in the dissolution of the civil union as it is in divorce actions. This would create the Catch 22 where a parent wishing to dissolve a civil union (so as to sever the property/inheritance/etc. rights created thereby)might have to submit to Vermont's jurisdiction over custody issues because their new home state doesn't recognize civil unions or a cause of action to dissolve them."

The related discussion poses the question, could a Virginia court dissolve a Vermont "civil union"?

Another hearsay gem from Buchmeyer

This one made me laugh out loud:

Prosecutor: On the photograph, what are on the brown, blood-like smudge?

Mr. Heu: From my zoological background, I keyed in on it because it had ants on it. [This was significant because it] indicated to me that it was fresh material rather than something that was days or weeks old.

Prosecutor: First of all, is there a difference between worker ants and soldier ants?

Mr. Heu: Yes. The soldier ants have large heads and the worker ants have small heads. The worker ants go out to forage - to find something. If it's a large find, the word will go back to the ant nest. The ants will send out more workers and if it's a big find, they'll send soldiers along.

Defense Attorney: I object to the materiality of the witness' statement.

The Court: Your objection is on the grounds of relevance?

Defense Attorney: Yes, sir. It's also hearsay as to what the ants tell each other.

The Court (wisely): Objection overruled.

On being oppressed by paper money

Overlawyered has this post which says a federal judge has ruled that "the U.S. Treasury Department is violating the law by failing to design and issue currency that is readily distinguishable to blind and visually impaired people."

The opinion from the D.C. District Court is here.

Thursday, November 30, 2006

Chief Judge Wilkins takes senior status?

SC Appellate Law Blog reports here that Chief Judge Wilkins is sending notice today that he is taking senior status. The post goes on to speculate on the future makeup of the Fourth Circuit. It says Judge Karen Williams will be the next chief judge. As described here, I am a fan of Judge Karen Williams.

I figure by this time in 2009, Gerald Gray, Mary Lynn Tate, and Nadine Strosser will be on the Fourth Circuit, at the rate things are going.

Wednesday, November 29, 2006

New rule on pro hac vice counsel in Virginia

Virginia Lawyers Weekly is reporting that the Virginia Supreme Court has adopted a new rule restricting the appearance of out-of-state counsel pro hac vice in Virginia cases.

I hate these kinds of rules when I go to West Virginia or Kentucky. Here on the Virginia-Tennessee border, I have not heard that there is a problem of Tennessee-only licensed lawyers running amok on the Virginia side.

So long as there is local counsel licensed Virginia at every hearing and every deposition and on every paper, and so long as pro hac vice lawyers are subject to Virginia discipline, the rest seems like a waste to me, including the fees and paperwork.

More on the Miller-Jenkins opinion

Michael Hardy wrote this article for the Richmond paper, which begins: "In an emotional struggle over parental rights arising from a former lesbian union, the Virginia Court of Appeals ruled yesterday that Vermont courts, not Virginia's, have exclusive jurisdiction in the custody battle. The decision, based on a narrow jurisdictional issue, is a preliminary round in the court battle that probably will reach the Virginia Supreme Court and perhaps the U.S. Supreme Court. Lawyers for the losing, biological mother yesterday vowed to appeal."

The Rutland, Vermont Herald has this report, which begins: "It didn’t take long Tuesday for news of a Virginia court’s ruling in a child custody case to travel north more than 550 miles to Janet Miller-Jenkins’ home in Fair Haven."

The New York Times has this article by Adam Liptak, who concluded: "The decision averted, at least temporarily, a collision between the civil unions for same-sex couples recognized in Vermont and the Virginia law."

Overlawyered has this post, which says in part: "Some social-conservative commentators had unwisely applauded the efforts of Liberty Counsel, a misnamed Religious Right litigation strike force, to help client Lisa Miller evade the jurisdiction of a Vermont court order ordering visitation rights to former partner Janet Jenkins."

Tuesday, November 28, 2006

Reefer madness

From an opinion by Magistrate Judge Sargent of the W.D. Va.:

"While there are disputes in the evidence with regard to whether Williams had been advised of his Miranda rights prior to making the statement at issue and whether the statement was made in response to a question, I find that the more credible version of the events comes from Haley. I base this finding on the fact that Williams admitted that he had begun smoking marijuana from the moment he awoke that morning and continued to do so until the vehicle was pulled over."

Virginia Court of Appeals tiptoes around DOMA in Miller-Jenkins case

In Miller-Jenkins v. Miller-Jenkins, the Virginia Court of Appeals avoided application of the federal Defense of Marriage Act.

The Court wrote:

"Simply put, DOMA allows a state to deny recognition to same-sex marriage entered into in another state. This case does not place before us the question whether Virginia recognizes the civil union entered into by the parties in Vermont. Rather, the only question before us is whether, considering the PKPA, Virginia can deny full faith and credit to the orders of the Vermont court regarding IMJ’s custody and visitation. It cannot. The law of Vermont granted the Vermont court jurisdiction to render those decisions. By filing her complaint in Vermont, Lisa invoked the jurisdiction of the Vermont court. She placed herself and the child before that court and laid before it the assertions and prayers that formed the bases of its orders. By operation of the PKPA, her choice of forum precluded the courts of this Commonwealth from entertaining countervailing assertions and prayers."

The result sought by DOMA, 28 U.S.C. 1738C, was that "in the event Hawaii (or some other State) permits same-sex couples to marry, other States will not be obligated or required, by operation of the Full Faith and Credit Clause of the United States Constitution, to recognize that marriage, or any right or claim arising from it." H.R. Rep. 104-664, 23, 1996 U.S.C.C.A.N. 2905, 2929. Arguably, perhaps, the custody rights at issue arose from Vermont's recognition of rights for same-sex civil unions. On the other hand, I suppose the Court is saying that the custody rights at issue arose from the Virginia Ms. Miller-Jenkins' decision to litigate custody in Vermont.

DOMA was passed under the authority of Congress under the second sentence of the Full Faith and Credit Clause: "The Effects Clause is an express grant of authority to Congress to enact legislation to prescribe the effect that public acts, records, and proceedings from one State shall have in sister States. To state it slightly differently, Congress is empowered to specify by statute how States are to treat laws from other States. Read together, the two sentences of Article IV, section 1 logically suggest this interpretation: While full faith and credit is the rule-that is, while States are generally obligated to treat laws of other States as they would their own-Congress retains a discretionary power to carve out such exceptions as it deems appropriate." H.R. Rep. 104-664, 25, 1996 U.S.C.C.A.N. 2905, 2930.

The attempt by the Court in Miller-Jenkins to distinguish between marriage and its "effects" is at best inadequately explained. By glossing over the conflict between DOMA and the Parental Kidnapping act, the Court avoided the monumental question of whether DOMA itself is constitutional.

Anyhow, this decision advances the issue for resolution by the U.S. Supreme Court, one of these days, since it is based on the federal Parental Kidnapping statute. The decision also highlights the irrelevance of the recently-passed marriage amendment in Virginia. The Court blows past all Virginia law provisions as fully preempted by the federal law. An amendment to the Virginia constitution would be no less preempted.

Environmental court in Wise County?

Here you can find the following letter to the editor of the Roanoke Times:

Once again, Southwest Virginia is leading the way in the state for litter control and local environmental protection.

The assign-a-highway program that utilizes the endless supply of labor from probationers got its start in Buchanan County, has spread to almost all the coalfield counties and is now adopted in several other state jurisdictions, including the Eastern Shore.

Judge Joe Carico, a former prosecutor and deputy attorney general, has launched the state's first environmental court in the Wise County General District Court. He has levied hefty penalties, up to $5,000, against litterbugs and people who dump trash and waste along roadsides and into streams.

Many coalfield counties have adopted ordinances, allowing their litter wardens to bring such cases to court under Virginia statute. Enforcement that hits the pocketbook stops littering and dumping.

Only the most dedicated idiots now dump trash in our region, and they are routinely caught with hidden cameras and very dedicated litter control wardens.

It's now hard to find roadside trash in Buchanan, Tazewell and Dickenson counties, and Wise and Russell counties are gaining ground.

Carico deserves our thanks for being innovative. Hopefully, his idea will catch on in the rest of the region and state.


Sunday, November 26, 2006


After I came back from this year's trip to Italy, I wrote that Florence was a bit overrun with commercialism, and we saw the David indoors and outdoors, but I never thought it would come to this, via BoingBoing.

Posner on raising the minimum wage

Judge Posner writes here:

"Increasing the federal minimum wage, currently $5.15 an hour, is a priority of the new Democratic Congress. Democratic leaders want to raise it by 40 percent, to $7.25 an hour. From an economic standpoint, even from an egalitarian standpoint, raising the minimum wage, especially by such a large amount (roughly 10 percent of the American workforce makes less than $7.25 an hour, which is double the percentage of the workforce that is paid the current minimum wage), would be a grave mistake."

I once dealt with an expert witness who in calculating future wages used some rate of wage growth based on the historic rate of increases to the minimum wage by Congress. The minimum wage? That's just some artificial number with no relation to the market, I declared. He said, well, that depends on your politics. I said, that's exactly right, it's all politics. I suppose he was correct that the wages paid for some lower-income jobs are affected by the minimum wage, but betting on Congress seemed like poor science to me.

On no federal class action in the Vioxx cases

The ruling by Judge Fallon denying certification of a nationwide class action in the Vioxx cases is here, noting that "courts have almost invariably found that common questions of fact do not predominate in pharmaceutical drug cases."

Indeed, the big products liability class actions are almost all in state court and not federal court, but not in Virginia, where there is arguably no authority for class actions, as discussed here.

New W.D. Va. standing order on filing cases

I read this new order and wondered whether it is somehow related to the opinion in Cornett v. Weisenbarger by Judge Williams, dealing with a case of late payment of the filing fee (among other things).

It would seem to simplify the issue Judge Williams confronted, in addition to dealing with multiple payments of the filing fee.

The filing fee is the weakest link in electronic filing, I've had the experience myself where the credit card on file had expired, and so the clerk's office would not charge the account until someone called and gave them the new expiration date.

Perhaps they could hold symposia in the Rotunda

Professor Althouse reports from the halls of the academe here on the "fat studies" movement. Would that be a "growing" movement, I wonder?