Friday, March 02, 2007

Another good bogus Supreme Court story

The headline says it all:

Supreme Court Gives Gore's Oscar To Bush

Friday's stuff

Here the Roanoke paper writes about today's ruling by the Virginia Supreme Court in the Blacksburg sewer case. (The link will go bad soon, since it is "breaking" news, or was.)

The Hook has more on the case of the candidate in the parking lot, which the Virginia Supreme Court refused to take.

StyleWeekly reports that a Henrico County business man is going around exposing employers in the Richmond area who hire illegal aliens.

The AP reports here that the federal judge in West Virginia dismisses the civil rights action brought by A.T. Massey against the state court judge's court reporter, who allegedly botched the transcript in the case where A.T. Massey is appealing the $30 million-plus verdict in favor of Harman Mining to the West Virginia Supreme Court (and now with a transcript, the Court might soon decide whether to take the case).

On those famous U.Va. law Minors, the Virginia Law Weekly has this feature story on William Minor Lyle, the nephew of John Barbee Minor, both of whom lived in Pavilion X after the Law School was moved out.

This Power Line post suggests that Senator Webb and Senator Graham are blocking any new Fourth Circuit nominees. Actually, it links to a ConfirmThem post that says Webb won't cooperate with John Warner.

The Norfolk paper reports here, the Richmond paper reports here, and the Roanoke paper reports here, on persons seeking the endorsements of bar groups for the upcoming federal court vacancies in the E.D. Va.

The Culpeper paper reports here that the town of Culpeper keeps paying for the big case it settled before trial, including $20,000 in expert witness fees.

Posts here and here examine the Fourth Circuit's opinion in U.S. v. Dyess, in which the conviction was affirmed notwithstanding an romantic relationship between one of the witnesses and one of the cops. Bristol's own Judge Widener wrote the opinion, and he was joined by Judge Niemeyer, with Judge Gregory concurring in part and dissenting in part, solely on sentencing.

Today's Supreme Court opinions

Steve Emmert has the lowdown on today's opinions from the Virginia Supreme Court.

The limitations ruling in Lambert v. Javed seems to be a step back towards what I thought the law was, before I read Hughes v. Doe from the last round of opinions.

In Hughes, the Court took the bogus route of explaining that a dismissal without prejudice was not "on the merits" and therefore dismissal as to the agent did not preclude liability of the principal.

In Lambert, the Court now says that the dismissal with prejudice based on limitations, even though it is not "on the merits," is enough to support res judicata as between the parties to the earlier dismissal, which is the opposite of what I feared would be the result of Hughes.

I think Justice Kinser has got it right when she wrote in her concurrence: "In my view, a dismissal with prejudice not only extinguishes the viability of a plaintiff’s claim but also is 'generally as conclusive of the parties' rights as if the action had been tried on the merits with a final disposition adverse to the plaintiff.'"

Add Judge Urbanski to the list of judges referencing Wikipedia

In Fisher v. Virginia Department of Corrections, Magistrate Judge Urbanski of the W.D. Va. referenced the Wikipedia entry for Asatru, which "is a new religious movement whose focus is reviving the Norse paganism of the Viking Age."

Thursday, March 01, 2007

That Tennessee cheerleader

I like this video almost as much as Coach Cheeks helping the girl sing the national anthem, also now on YouTube (what ain't). You've got Coach Summitt singing, and Coach Fulmer picking his nose up in the stands. And, Tennessee romped over the evil Gators thereafter.

Allen stock option reporting story shows media bias toward ignorant sensationalism, says Denton

Here it is reported:

"During George Allen's unsuccessful 2006 Senate re-election campaign, the Virginia Republican was accused of failing to tell Congress about $1.1 million in stock options.

Those charges have now been dismissed, and a political communications specialist said Tuesday the outcome was a sign that "the media do not do a good enough job" investigating the allegations in the first place.

"There are many different types of media bias, not all of it left or right or ideological per se," Robert Denton, Jr., director of the W. Thomas Rice Center for Leader Development at Virginia Polytechnic Institute and State University in Blacksburg, told Cybercast News Service."

Anna Nicole's case and the tipsy coachman

Here Matt Conigliaro explains the nature and origin of the "tipsy coachman" rule in the vocabulary of the appellate courts of Florida, and here he explains how the cable news guys have not quite figured it out, when they say "The appellate court compared Judge Seidlin's decision to a drunk driver."

Wednesday, February 28, 2007

More fiddling

People tell me that the local Republicans were unable to agree on a candidate to succeed Judge Williams in the 29th Circuit, and now no one knows whether the General Assembly still can act or whether Governor Kaine will get to fill the vacant judgeship on an interim basis. The Constitution says: "The General Assembly shall reconvene on the sixth Wednesday after adjournment of each regular or special session for the purpose of considering bills which may have been returned by the Governor with recommendations for their amendment and bills and items of appropriation bills which may have been returned by the Governor with his objections. No other business shall be considered at a reconvened session." Article IV, Section 6.

If Governor Kaine makes the decision, the recess appointment lasts only until next year. Nevertheless, if history is any guide, some of Governor Allen's recess appointees were reappointed way back when, including Justice Kinser, whose initial appointment fell to the governor "because of a partisan deadlock in the General Assembly," according to Virginia Lawyers Weekly of April 28, 1997.

I can imagine some of my Democrat lawyer friends in the 29th Circuit rubbing their hands together.

Can same sex couples cohabitate in a situation analogous to marriage?

In Stroud v. Stroud, the Court of Appeals in an opinion by Judge Haley reversed Judge Keith from Fairfax County on the issues of "(1) whether the evidence compels the conclusion that the terms of a property settlement agreement ('PSA') terminating spousal support upon 'cohabitation with any person . . . in a situation analogous to marriage' have been met, and (2) if so, whether such a clause involving a relationship among persons of the same sex is operative as a matter of law in Virginia."

The trial court ruled: "in Virginia, where marriage between persons of the same sex is barred -- 'cohabit' has to mean between people of the opposite sex . . . as a matter of law, in Virginia, people of the same sex cannot cohabit, and that's how the PSA was written."

In this article about the case, one commentator said: "The legislature certainly does not recognize same-sex relationships as anything--they don't even recognize the capacity of same-sex couples to contract. . . . So the fact that a court is saying a relationship between same-sex couples can be analogous to marriage is important."

Over at Waldo's blog, I offered this comment:

The marriage amendment, Art. I, section 15-A of the Constitution is not mentioned in the opinion, probably because the case predates the effective date of the amendment.

The double irony is that (a) the contract at issue here is a contract between a man and a woman, and (b) the person in the same-sex relationship was the one trying to use the statutory same-sex marriage ban as a shield against the enforcement of the contract. The court ruled the contract between the man and the woman is enforceable and the same-sex marriage ban is irrelevant. Probably that is a sound and unremarkable result, so much so that it is difficult to see how it would contribute to the evolution of the law toward the legal recognition of same-sex couples’ rights which Waldo has been predicting for some time.

When someone like Robyn sues claiming some kind of common law entitled to someone like Ms. Stroud’s stuff, that’s when heads will explode.

Bunch of interesting stuff

This article from the Charlottesville paper says: "The Supreme Court of Virginia has denied an appeal to a one-time political candidate who pressed his belief that a right to campaign should spare him from his trespassing arrest at an Albemarle County shopping center." Also on candidates, the Roanoke paper editorializes that the Commonwealth should make the price of running for office lower, so anyone could run for office.

In land use matters, the County Attorney in Christiansburg is advising against a county ordinance outlawing the proposed intermodal freight facility, which might be pretty good advice. Also, the Lynchburg paper reports here that the U.S. Department of Justice is no longer investigating whether a zoning fuss over the Cowboy Church in Bedford County implicates federal religious land use protections.

Also, speaking of church controversies, the Episcopal News Service reports here that the Episcopalians are still going to litigate over their property in Virginia. As for the old chapel in Williamsburg, the Wren Cross matter might cost the College $12 million, according to this report. Maybe they can make it up with money from Philip Morris - this post says U.Va. has just "announced its acceptance of a $25 million gift from cigarette maker Philip Morris, to support biomedical research and 'business leadership.'" Also, the lawyer for the ex-priest accused of being married and being an embezzler was not actually married, according to his lawyer, as reported here in the Richmond paper.

More lawyers are jumping on the gravy train in West Virginia, as it is now being reported: "Lawsuits similar to the case against Chesapeake Energy Corp. and NiSource Inc. that resulted in a $404.3 million jury verdict have been filed against two other big West Virginia natural gas producers." I thought the earlier case was mostly about whether some funky below-market financing deals could be considered in calculating the price on which royalties, but maybe they're not as funky as I thought. Speaking of gas, it says here that the cheapest gasoline in the U.S. is in Virginia.

From who knows where, this article describes a case where the defense lawyer "has called into question the judge, the police chief and now wants to subpoena a police dog as a exhibit in the case." Similarly, in Mississippi, State Farm may have some dog cases, and they are trying to boot the federal judge who has been dealing with their proposed settlement with Katrina victims, since he himself is a Katrina victim, according to this report.

Sunday, February 25, 2007

Gender bias in the Supreme Court?

This post includes the abstract of an article which concludes that litigants with more women on their litigation team do less well before the United States Supreme Court: "Our findings suggest that litigation teams that have a higher proportion of female attorneys are less likely to win before the Court. In addition, this bias appears to be highly conditional on judicial ideology. Conservative jurists are more likely than liberal jurists to vote against litigation teams with a higher proportion of women."

I'm not sure that understand what they're saying, that the judges discriminate against the women lawyers, or that the women lawyers discriminate in the kinds of matters they bring before the the Court, or that the lawyers who litigate certain kinds of matters keep women off their teams.

More discussion on the HPV vaccine

This news story says that there have been complications associated with the new vaccine, and that the opt-out provision for parents is applies to all childhood vaccines or none - two points I had not heard.

Also, in the article, some nurse is quoting as saying that the vaccine must be safe and effective or it would never have been approved. That's only partly true. The available evidence can change over time.

This story talks about the cost of the vaccine.

This story cites polling data that 80% of mothers with teen-aged daughters support the vaccine, or something like that.

The new law against expulsion of suicidal college students

The General Assembly passed a bill this year that provides, among other things: "The governing boards of each public institution of higher education shall develop and implement policies that advise students, faculty, and staff, including residence hall staff, of the proper procedures for identifying and addressing the needs of students exhibiting suicidal tendencies or behavior. The policies shall ensure that no student is penalized or expelled solely for attempting to commit suicide, or seeking mental health treatment for suicidal thoughts or behaviors."

U.Va. study says older witnesses less reliable

According to this story, "A University of Virginia study suggests that older adults are not only more inclined than younger adults to make errors in recollecting details that have been suggested to them, but are also more likely than younger people to have a very high level of confidence in their recollections, even when wrong, according to a press release. The finding has implications regarding the reliability of older persons' eyewitness testimonies in courtrooms."

Over in West Virginia
, "After faulty eyewitness identifications helped send at least 146 innocent people to prison nationwide -- including three in West Virginia -- in the last decade, the Senate Judiciary Committee endorsed a proposal Thursday to increase the practice's accuracy."

What he said

In this post, Milbarge of BTQ takes on an excellent movie, The Best Years of Our Lives. I agree with Milbarge, if you've never seen this movie, make time for it.

More judges

Besides Cheryl Higgins in Albemarle, on Friday, the General Assembly approved two for general district court and one for juvenile court:

Paul W. Cella, of Powhatan, as a judge of the Eleventh Judicial District for a term of six years commencing August 1, 2007.

Sarah L. Deneke, of Stafford, as a judge of the Fifteenth Judicial District for a term of six years commencing April 1, 2007.

Phillip U. Fines, of Spotsylvania, as a judge of the Fifteenth Judicial District for a term of six years commencing July 1, 2007.

In this article, the Fredericksburg paper notes that Deneke and Fines are both prosecutors.

This story says a Republican delegate is refusing to act on a judicial position where his sister is a candidate for the job, with the result that the circuit court judges will have to pick some one.