Saturday, January 27, 2007

How should we select a Chief Justice?

This SCOTUSBlog post addresses the question of how should the Chief Justice of the United States Supreme Court be selected, and the commentary proposes that "once all nine vacancies on the Supreme Court are filled, the members of the Court should select the Chief Justice," for the reason that "the Justices are in the best position to know whether one of their colleagues is collegial and possesses the leadership and administrative skills to serve as an effective Chief Justice." The referenced article can be downloaded here.

Last week's Virginia Lawyers Weekly had a cover story on HB 2089, which would among other things change the way the Chief Justice is selected in Virginia, taking the selection power away the members of the Supreme Court, while at the same time taking a number of statutory responsibilities away from the Chief Justice and giving them to the members of the entire Court. The proponent is Delegate Janis, with whom I might be inclined to agree on many things, with the exception of his extraordinary remarks about judicial selection, and some parts of this bill. There seems to me some inconsistency between empowering the whole Court to decide an increased number of matters while removing their power to select a Chief Justice.

The significance of the bill has more to do with cutting back the powers of the Chief Justice over local judges, it seems to me, than with trying to oust the current Chief Justice, who might well continue as Chief even if HB 2089 passed, since it does not require the senior justice to agree to serve as Chief Justice.

HB 2089 appears again in this week's VLW, which has a story about how Chief Justice Hassell has taken up the issue of how the workload is assigned among the judges of the Circuit Court for the City of Richmond. The article says: "Hassell's intervention with the Richmond judges appears to have played a role in the decision of Del. William R. Janis to introduce House Bill 2089, which moves many of the specific statutory duties of the chief justice to the full court or to the chief circuit court judge." VLW, 1/29/07.

In the earlier VLW article, a spokesman for the Supreme Court offered this provocative comment about HB 2089: "The Supreme Court of Virginia has significant concerns about the impact of this bill upon the administration of justice."

Yoo v. Wu and Hass too

Professor Solum has posts here and here on the views regarding net neutrality of Christopher Yoo, Tim Wu, and Douglas Hass.

Every time I start to get lost in the weeds of the net neutrality debate, I read this again or this.

UPDATE: For some more comments questioning the need for net neutrality, which I have not read, see the links in the comment. (Yes, you can comment here on the SW Virginia law blog, if you look at the posts one at a time.)

On this year's laws against murderers and abortion

The Washington Post reports here that legislation has passed the House of Delegates that would expand the cases for which a convicted murder can receive the death penalty in Virginia. The article also describes legislation that would make it a crime in Virginia to force someone to have an abortion.

I agree with adding "judge killers" to the death penalty list, if there must be such a list

Speaking of which, I just got through reading Limitations by Scott Turow, about an appeals court judge receiving threats. Short and good, I read in a couple of hours.

Mistrial when lawyer loses train of thought

The Daily Press has this AP story about a Virginia trial where the judge declared a mistrial after the 70-something defense lawyer "said he couldn't continue his closing statement because he had lost his train of thought."

Or as we sometimes say, the train has left the station.

On handling PDF files for e-filing

Ernie Svenson has this post on dealing with PDF files for e-filing in the federal courts.

I must confess I am so cheap that I do not own an Acrobat license, I use a program called NitroPDF for most of my PDF tricks - putting them together, taking them apart, adding bookmarks, etc., and sometimes use a program called eCopy to scan documents (to Word of PDF) with OCR - so I can look up, for example, how many times (and where) the word "operations" appears in the lease I am writing about this weekend. eCopy came with the copier, I think. Also, we have a license for a program called Easy Bates, which does the Bates stamping of PDF files better than NitroPDF.


The other day I wrote:

The Democrat delegate who opposes the reappointment of a general district court judge is now saying the judge was only supposed to get one term. That's a strange thing to be saying. A deal like that would be unenforceable, surely.

In fact, it is a circuit court judge. Maybe I'll get this story straight before the end of the session - so far, my record is 0 for 2.

Friday, January 26, 2007

Stuff that's piled up

The case of the she named He: The Supreme Court ruled that the birth-parents of a young girl from China are entitled to custody, over her adoptive parents. Here is a story from the Shanghai Daily, and the Volunteer Dispatch has this post, speculating that the case could go to the U.S. Supreme Court.

The alleged unethical treatment of dead animals by PETA workers: the Norfolk paper reports here on the ongoing trial in NC of two Virginia PETA workers, who "being tried together on 21 counts of felony animal cruelty, seven counts of littering and three counts of obtaining property by false pretenses." Geez, they wouldn't want me on that jury.

How partial is partial: this post talks about the next great issue for the Supreme Court in the application of the Federal Arbitration Act - "The dispute turns on the meaning of "evident partiality" in 9 USC 10(a)(2): whether that term requires that an undisclosed relationship that the arbitrator had with a party, witness, or counsel (as in Positive Software Solutions) must be beyond a "trivial or insubstantial" prior relationship in order to justify vacating an award (as the majority of the Fifth Circuit en banc held), or whether the "very failure to disclose facts that might create a reasonable impression of the arbitrator's partiality" justifies vacating the award (as the panel opinion had held)." I've got a couple of arbitration cases cooking, one's that about done I think and one that needs to get started.

The Lynchburg Circuit Court sustained a demurrer to the lawsuit challenging the plans of Randolph-Macon Women's College to go co-ed, as the Lynchburg paper reported here. The article says Ed Fuhr from Hunton & Williams represented the college. Wyatt Durrette as counsel for the plaintiffs said that "the judge’s ruling surprised him." No doubt it did.

Posts like this one and articles like this one continue to expand the speculation about the impact of the Fourth Circuit's ruling in the Maryland Walmart employee benefits case. Does the logic of that ruling limit the authority of any state-wide scheme for employers to provide medical insurance? Perhaps so.

Delegate Hargrove proposed a resolution to celebrate Juneteenth, after his controversial remarks about slavery, as reported here. Juneteenth is an interesting idea for a holiday. There was a Rappahannock Juneteenth celebration in 2006.

I'm still wanting to read the Virginia Court of Appeals opinion in the parking with an expired inspection sticker case, described here. Do you reckon the fellow ever moved his car?

The Washington Times is pointing the finger at Michael Powell in the Wren Chapel cross matter, as Powell is on the board of the College of William & Mary. Somehow, the Times attempts to make some comparison between the removal of the cross and the Janet Jackson episode at the Super Bowl, surely a strange connection to try to make.

The Democrat delegate who opposes the reappointment of a general district court judge is now saying the judge was only supposed to get one term. That's a strange thing to be saying. A deal like that would be unenforceable, surely.

"Hogs are not game animals." It says so right here in the Hook, in an article about the Boar man, and "Operating Hog Wild."

Another corner heard from: part of the transportation debate includes the issue of whether the state can make localities raise taxes, according to this article in the Norfolk paper, including commentary from Professor Howard, who says "the state can order cities and counties to impose local taxes against their will."

Wednesday, January 24, 2007

Del. Janis speaks on the relevance of local bar endorsements

Quoted here in the Daily Progress, Delegate Bill Janis said:

"The notion that the lawyers of the Charlottesville bar can pick who the next judge will be is like saying that the inmates get to pick the next warden."

Now, that's one view of bench-bar relations.

Tuesday, January 23, 2007

House approves Chad Dotson for general district court judgeship

As Not Larry Sabato reported earlier, the House approved HR 53 , which includes Chad Dotson among those appointed or reappointed for general district court judgeships. Well done, Chad. On Chad's selection, Ken Lammers has commentary here, and says Ron Elkins as Chief Deputy may be the next Commonwealth's attorney. Well done, Ron - another good guy.

At the same time, the House voted in Joe Carico to the 30th Circuit, in approving HR 52. The Senate approved the same list of circuit court appointees and re-appointees, in SB 43. I don't know Judge Carico as well as I know these other guys.

Also, the Senate Finance committee has approved SB 1175, which would add a juvenile and domestic relations district court judge for the Abingdon-Marion-Bristol district, among other things, as well as SB 1174, which will add circuit court judgeships in circuits including here in Southwest Virginia the 27th (Galax, Radford, Bland, Carroll, Floyd, Giles, Grayson, Montgomery, Pulaski, Wythe) and 30th (Norton, Lee, Scott, Wise).

I saw Judge Birg Sergent at the VBA winter meeting, and asked whether decision by the General Assembly to add a judgeship to the 30th circuit on the eve of his retirement means that the legislators have determined that it will take two judgeships to replace him. The facts cannot be read any other way.

Great blogger

Here is a good article on Sabrina Pacifici, the brains of the beSpacific blog, which is always chock full of useful links to key government documents and other items of interest.

Monday, January 22, 2007

On judging the cases of lawyer-legislators

The Norfolk paper opines here that a xxxxx legislator stepped so far over the line with his opposition to a judge before who he appears that it ought to be obvious to everyone that some reform is required on the problem of lawyer-legislators appearing before the judges whose appointments they control.

UPDATE: Oops, the legislator is not a Republican, as previously noted here in error.

On jury reform

Another lively part of the VBA meeting was the discussion on improving the jury system in Virginia, and the liveliest part was discussion about whether it would be a good thing for Virginia to eliminate all exemptions from jury service. Currently, lawyers and judges, among others, are exempt from serving on juries. The proposal, as I understand it, would not eliminate the trial court's discretion to exempt persons on an individual basis for some kind of good cause.

This article from the Roanoke paper details what happened when a member of the Roanoke city council did not show up for jury duty. The circuit court issued him a show cause order. The article said, citing the Commonwealth's attorney:

"Although offenders can face up to 10 days in jail and a fine of $250, Caldwell said it's rare for Roanoke judges to actually find someone in contempt of court. Most often, he said, the person is let go with a warning -- after being admonished by the judge about the important civic responsibility of jury duty."

On intentional infliction of emotional distress

In the last batch of Virginia Supreme Court opinions, in Almy v. Grisham, the Court in a 6-1 decision overruled the order by Judge William Shelton sustaining the demurrer of some of the defendants on the plaintiff's claim of intentional infliction of emotional distress. Judge Kinser was the lone dissenter, and she expressed the view that the majority opinion was inconsistent was prior decisions of the Court about the sufficiency of allegations of the severe emotional distress necessary to state a claim.

This is another opinion where it seems to me impossible to blame the circuit court judge, given the state of the law before him. The case law dealing with intentional infliction cases was mostly on the defendants' side, and the majority's efforts to distinguish the established precedents does not seem likely to make the law any clearer, as they acknowledged when they said: "A primary reason for the tort’s disfavored status is that because the prohibited conduct cannot be defined objectively, clear guidance is lacking, both to those wishing to avoid committing the tort, and to those who must evaluate whether certain alleged conduct satisfies all elements of the tort."

The Hook had this article about the decision.

What can an electric utility do about global warming

An interesting part of this weekend's VBA winter meeting was the presentation by John Warren, Director of the Division of Energy for the Department of Mines, Minerals, and Energy on Virginia's Energy Plan.

Related to this, I was interested to read this article about a decision by the Supreme Court of the State of Washington, to the effect that a taxpayer-owned electric utility there could not use ratepayers' money to pay others to do good deeds as regards global warming.

The other fascinating part of the presentation from the Administrative and Environmental law sections dealt with the ongoing litigation before the State Corporation Commission regarding the private wind turbine project proposed to be located in Highland County. Present were two of the lawyers involved, Dan Summerlin from Woods Rogers who represented some of the citizen opponents and Wiley Mitchell, who represented the Nature Conservancy, and even those two groups have different views about the project.

The Augusta County fence case

In one of last week's opinions, Cline v. Berg, the Supreme Court ruled that the fellow who complained about the big white fence shown in this picture was barred by the doctrine of "unclean hands" from obtaining relief against the fence, since his own acts are what caused the fenced to be erected. The Court in an opinion by Justice Kinser reversed the injunction entered by Augusta County Circuit Judge Thomas Wood. (I like Judge Wood, and I suspect he did the best he could have, who would have thought "unclean hands"?) The picture of the fence comes from this article in the Staunton paper, which discusses the decision.

On the ABA ratings of federal judge nominees

This editorial from the Hartford Courant says that it is unfair that Judge Bryant has no way to confront the people who said whatever bad things were said about her to the people at the ABA who rated her unqualified for the federal judgeship in Connecticut to which she has been renominated by President Bush.

The editorial says in part:

"This is an injustice to Judge Bryant and to anyone who may appear before her. If her colleagues have serious concerns about her competence, they owe it to clients and the rest of the legal fraternity to come forward. Judge Bryant deserves the chance to confront her critics and answer their allegations."

On the Fourth Circuit's opinion in the Maryland benefits case

In 2005, Maryland passed the Fair Share Health Care Fund Act which required that companies with more than 10,000 workers spend at least 8 percent of their payroll for employee health care or make up the difference in an equivalent payment to the state. Walmart was the most obvious target of the Fair Share Act.

Last week, in Retail Industry Leaders v. Fielder, the Fourth Circuit in a split decision upheld the decision by District Judge Motz that the new law was unconstitutional. Judge Niemeyer wrote the opinion, joined by Judge Traxler, with Judge Michael dissenting.

The Baltimore Sun had this article on the decision. The Insurance Journal had this article about the decision.

On ignoring the U.S. Supreme Court

This interesting column from Slate's Dahlia Lithwick asks whether the Texas appeals courts have decided to ignore Supreme Court opinions dealing with death penalty cases.

On a mandatory retirement age for lawyers

In this report, the New York State Bar Association protests against the establishment of mandatory retirement age for lawyers in law firms as bad for lawyers and the public, and quite possibly actionable under the ADEA in light of the opinions from the Seventh Circuit related to the Sidley Austin case.