Friday, January 12, 2007

Outrage of the day

The Virginia Supreme Court upheld sanctions against the defense lawyer who speculatively pled some affirmative defensives in the case of Ford Motor Company v. Benitez.

Even if the main holding is correct, and I would not have gone along with it, the Court should have let this particular lawyer off the hook, as it frequently has done in the past in cases such as Jordan v. Clay's Rest Home, 253 Va. 185, 483 S.E.2d 203 (1997).

The reason is, whether the judges know it or not, every defense lawyer in Virginia has been writing answers this way, since I've been a lawyer. Doesn't every dog get one bite?

Real estate prices gone up in the old neighborhood

The Hook reports here that the University is getting scalped in its purchases on or about Brandon Avenue. I lived on Brandon Avenue for a couple of years, it was pretty convenient to Cabell Hall, where about 90% of my classes were held, way back when - but not as convenient as it will be when they build that football-field sized terrace over Jefferson Park Avenue.

Thursday, January 11, 2007

Seven items that have been sitting here waiting to be blogged

Not that I have time to adequately myself on these items, but here they are, some of them have been noticed by others, whom I would cite if I had the gumption.

This article from StyleWeekly fleshes out the details of how terrible it is that court-appointed lawyers in Virginia are paid so little. If I was in the legislature, I would complain about this issue every day until it gets resolved, there is no more important business for the General Assembly to consider than whether it will afford poor Virginians their right to counsel by paying lawyers adequately to do the work - particularly when this year like every other, the General Assembly members are cooking up dozens of new criminal offenses to inject into the Code.

This article talks about the irony of the efforts by the Hazel family to keep a power line off their property. There is irony, there, but I don't know too much about it, the Hazels are like fictional characters I've only read about in the Washington Post and Virginia Business.

This commentary on zoning law in Virginia, which points out there is case law already in Virginia where the Virginia Supreme Court upheld a denial of rezoning in Chesterfield because of the lack of adequate facilities for the proposed new use. It also points out some remarkable figures on proffers, that is cash to accompany rezonings: "for fiscal 2006, Fairfax County (pop. 1,006,529) collected $8.2 million in cash proffers. Chesterfield County (pop. 288,876) collected $6.8 million. The City of Manassas Park (pop. 11,622) collected $2 million. Loudoun County (pop. 255,518) collected $13.3 million. Prince William County (pop. 348,588) collected $25.2 million."

This update
from Martinsville says that Hunton & Williams charged the city over $750,000 to lose the cable TV case. The County Attorney, a good man if ever there was one, is quoted as saying "'It pains me a great deal ... (that) all of this money has been flushed away by the city' with no return on the investment." No doubt.

This article (registration required) from the Winchester paper says that a high school student is seeking a preliminary injunction against the Frederick County schools in connection with his right to wear a t-shirt with some kind of Christian message, and his right to distribute pro-life literature. Do the high schools ever win those t-shirt cases? The article says the plaintiff Andrew Raker has been consulting with some group called the Alliance Defense Fund.

The Hook has this article with more coverage on who will succeed Judge Peatross in Albemarle County. Only in Charlottesville does a judgeship get so much press. The inference that the Hook and others are trying to make is that the politicians are going to pick a Republican party regular, such as the current Commonwealth's attorney, over better-qualified candidates who got better ratings from the local bar association - at least, that's the story they are looking for, whether it ever turns out that way remains to be seen. There are some non-Republicans getting circuit court appointments these days, not too many, but more than zero. (I can name one.)

Finally, from Yahoo, here is a story about an award of punitive damages against State Farm in a case related to damage from Hurricane Katrina. One interesting thing is that the case got to trial so soon, in some places it would take longer.

Is there a shortage of city managers?

The New York Times reports here on what is described as the coming shortage of qualified managers for the nation's cities and towns.

Bristol, Virginia, is looking to replace its City Manager, while the outgoing incumbent is getting quite a package of parting gifts as he heads into retirement - maybe the market demands that city managers get such goodies. I'd say that the fellow in Bristol city government who could write his own ticket about any place in the U.S. is not anyone who ever worked in the City Manager's officer, but rather the head of Bristol Virginia Utilities and perhaps a few of his colleagues.

More on the anti-corporation rights movement

According to this report in the Roanoke paper, the same brainwave that is being tauted as the solution against biosolids is being offered up against the intermodal freight facility - the proposals by the Community Environmental Legal Defense Fund for ordinances targeting corporations.

Well, at least the Democrats will do something about Net Neutrality

Senator Dorgan is bragging on his new proposed Internet Freedom Preservation Act, co-sponsored by Senators Kerry, Boxer, Harkin, Leahy, Clinton, and Obama.

I'd have more confidence in a bill endorsed by Boucher and Goodlatte. I'm not sure that the celebrity politicians in the Senate are particularly reliable on any technical issues, including this one - but I will try to read the bill and see where it fits in.

Not everyone agrees on whether the new Congress is jumping on tech issues: today, I saw one headline that said Congress Off To Slow Start With Tech and another that said 110th US congress wastes no time on Net neutrality.

Wednesday, January 10, 2007

The latest Blawg Review - from New Orleans

Ray Ward has this latest Blawg Review, with sort of a New Orleans religious theme, which reminds me that I sometimes think when listening to President Bush address legal matters that he is talking about some street in New Orleans called the "Rue La-La." All of the president's nominees to the appeals courts have had their footprints on the Rue La-La.

Bashman on stealth judging in state appeals court

Howard Bashman comments here that it's time to abolish invisible rulings by state appellate courts, and he's right.

The Virginia Supreme Court is, to my knowledge, one of the very worst offenders on this point - it is impossible to find on Westlaw or online an unpublished decision, even though the lawyers in the case get them from the clerk (and the Richmond law firms get them the same way).

One of the cases I argued before the Virginia Supreme Court is unpublished, might as well have never been decided. And, it was an interesting case, even though my side lost.

By contrast, the unpublished opinions of the Virginia Court of Appeals are in a sense published on the website and on Westlaw - even if they cannot be cited as precedent, everyone can read them. Access to unpublished opinions is an open government issue.

Fourth Circuit nominees Haynes and Boyle to be withdrawn from consideration

Via ACSBlog, the AP is reporting that Fourth Circuit nominees William J. Haynes and Judge Terrence Boyle of North Carolina have notified President Bush that their names be withdrawn from consideration, or in any event the White House is not going forward with their nominations. Judge Boyle, according to the Raleigh paper, did not "throw in the towel" himself.

The Washington Post has this editorial, applauding the withdrawal of these names. It says in part: "Mr. Bush's move was a wise acknowledgment of political reality, but it was also right on the merits. Democrats had valid objections to the nominations of William J. Haynes II, William G. Myers III, Terrence W. Boyle Jr. and Michael B. Wallace. Mr. Haynes, the Pentagon's general counsel, has been a key player in the military's policies on detentions and interrogations in the war on terrorism. . . . Judge Boyle, who serves on the U.S. District Court in North Carolina, has a troubling history in civil rights cases."

Perhaps this development increases the likelihood that the White House will actually nominate one or more of the several qualified Virginia judges for vacant positions on the Fourth Circuit, including Judge Widener's seat and Judge Luttig's seat. Back in June, Virginia Lawyers Weekly listed Virginia lawyers approved by the various bar associations, including among others, Supreme Court of Virginia Justices G. Steven Agee and Donald W. Lemons, Virginia Court of Appeals Judge D. Arthur Kelsey, and U.S. District Judges Glen E. Conrad of Roanoke, James R. Spencer of Richmond, and Rebecca Beach Smith of Norfolk.

The Richmond paper's article
reports that new Senator Webb expects to play an active role in the selection of nominees from Virginia. Senator Webb's list of candidates might vary a good bit from those former Senator Allen would have preferred.

Tuesday, January 09, 2007

Drug guy's phone call to undercover officer not testimonial hearsay

In U.S. v. Ayala, Chief Judge Jones of the W.D. Va. held that the Confrontation Clause as construed by the Supreme Court in the Crawford case does not apply to bar the admissibility of the out-of-court statement about the defendant made by some drug guy on the cell phone who thought he was talking to another guy wanting to buy drugs who was actually an undercover police officer.

It does seem that a statement of this kind is not too much like testimony in court, or so one would hope.

Good story on retiring SC appellate judge

In South Carolina, the State has this delightful profile of a retiring appellate court judge, which begins with this story:

"In the early 1960s, when Travis Medlock and Bert Goolsby were young lawyers in the S.C. Attorney General’s Office, the two were assigned to try a major stock fraud case.

As Medlock tells the story, the lead prosecutor suddenly pulled out in the middle of the Greenwood trial. That left the two young prosecutors in charge.

Goolsby looked toward the area where the state’s witnesses were sitting and called a man to the stand. To Goolsby’s surprise, the witness said he knew nothing about the case.

He was the court bailiff.

Goolsby, now 71 years old and a judge on the S.C. Court of Appeals, will retire June 30. He is the last of the court’s original six members."

Sunday, January 07, 2007

New tactic considered in sludge fight

The Lynchburg paper reports here that some lawyers are promoting a new draft ordinance that they believe would empower Campbell County and others to ban the use of biosolids as fertilizer. The Campbell County group has a website, with link to something called the Community Environmental Legal Defense Fund, which has on its website some draft ordinances, including this one which sounds like what is being proposed for Campbell County. The draft ordinances were written for Pennsylvania, where presumably the Dillon's Rule presumption is not quite so strong as in Virginia.

As noted in this post from 2004, Appomattox County wound paying $225,000 in attorney's fees when it lost the court challenge to its biosolid ordinance.

The Virginia Supreme Court rejected Amelia County biosolid ordinance in 2001.

NC's oldest law firm to merge with Williams Mullen

Triangle Business Journal reports here that Maupin Taylor is merging with Williams Mullen.

Southwest Virginia's latest international celebrity

As reported here, the two-faced calf from Rural Retreat has made news around the globe.

It even got a BoingBoing post.

Will bar endorsements make a difference in selection of Albemarle County judge? notes here that the local bar endorsed two for the Albemarle circuit court, but a third candidate is still in the running.

What would happen if someone like Waldo was on the case of every judicial vacancy in the Commonwealth?

Split decision in Title VII case

In Luh v. J.M. Huber Corp., the Fourth Circuit in an unpublished opinion by Judge Widener, joined by Judge Niemeyer, affirmed summary judgment on the plaintiff's employment discrimination claims. Judge Gregory wrote a 20-page dissent, concluding that there was a question of fact as to pretext. Loblaw made this one of his Decisions of the Day.