Saturday, June 02, 2007

On the passing of Judge Brown

The first time I appeared in court on a court-appointed criminal case, the judge was Judge David Brown. Judge Brown was a big man, with a booming voice, and powerful legal mind. He could have excelled on the bench at any level - district court, circuit court, appellate court.

He died this week at age 77, and here is part of his obituary from the Bristol paper:

"David Brown
ABINGDON – The Honorable David Daniel Brown, age 77, passed away Wednesday, May 30, 2007, at his home.

Mr. Brown was born in Meadowview to the late Hayter C. Brown Sr. and Mary Gladys Ritchie Brown. His sisters, Frances Brown Wohlford and Mary Louise Brown Baker; and his brothers, Hayter C. Brown Jr. and Charles Luther Brown, preceded him in death.
He is survived by his loving wife of 56 years, Nancy Blevins Brown of Abingdon; two daughters, Deborah Brown Harvey of Richmond and Sharon Brown Taylor and husband Joe of Glade Spring; and two sons, Charles David Brown and wife Petissa of Abingdon and Robert Daniel Brown and wife Sarah of Floyd, Va.; six grandchildren; three great-grandchildren; and several nieces and nephews also survive him.

Mr. Brown was a graduate of Meadowview High School and Emory & Henry College. He served in the U.S. Army during the Korean conflict and was a graduate of University of Virginia Law School in Charlottesville. From 1950 to 1951, and again from 1953 to 1954, Mr. Brown served as a teacher in the Washington County public school system. He was also a teacher in the Adult Bible Class at Meadowview United Methodist Church and in the Wesley Bible Class at Abingdon United Methodist Church.

As a leader in his community, he was chairman of the Cancer Crusade, president of the Abingdon Civitan Club, president of the Washington County Chapter of the Virginia Society of Crippled Children and Adults and member of the Holston Tuberculosis Association. He was elected commander of the Washington County Post No. 12 of the American Legion. As a member of the Democratic Party, he was president of the Washington County Young Democratic Club and served as state president of this organization in 1961.

Mr. Brown served as commonwealth's attorney of Washington County, Va., from 1964 to 1978. He was appointed general district court judge in 1982 and served until his retirement. While serving as counsel for the School Board, he was instrumental in establishing the magisterial districts named after Virginia presidents along with staggering the elections of county Board of Supervisor and county School Board members.

Funeral services for Mr. Brown will be held Sunday, June 3, 2007, at 4 p.m. at the Abingdon United Methodist Church, with the Rev. Walter Weikel officiating. Visitation will be from 2-4 p.m. at the church prior to the service. Entombment will follow at Knollkreg Memorial Park Mausoleum, with Pastor Jerry Eggers officiating. A Masonic service will be led by Abingdon Masonic Lodge No. 48, and military honors will be conducted by the Highlands Veterans Honor Guard.

Active pallbearers will be James Hay, Robert Duncan, Fred Wilson, the Honorable Charles Harrison Smith Jr., Emmitt Yeary, Tim Barker, Robert Cooper, G.C. Brown, Kenny Parker, Charles Elton and Reelia Watson. Honorary pallbearers will be members of the Abingdon United Methodist Church Wesley Bible Class, members of the American Legion, members of the Abingdon Masonic Lodge No. 48, the Honorable Joseph P. Johnson Jr.; the Honorable James P. Jones, the Honorable T.L. Hutton Jr. and Dr. Martin Monahan."

Thursday, May 31, 2007

Making the rounds

I've seen in a few places references to the tale of the lawyer who told the judge in open court that he thought the judge was a few french fries short of a happy meal, or something like that.

Here is the Wikipedia entry for Happy Meal.

So, I might have been born at the tail end of the Baby Boom, but my ancient and venerable status is compelled by the fact that I never had a Happy Meal, since I was eating Big Macs by 1979 when the first Happy Meal was sold.

On the Loving case

Here Joanna Grossman begins an analysis of the Loving case, decided in June, forty years ago.

Here are some earlier posts on the case, in which the Supreme Court held Virginia's bad on inter-racial marriage to be unconstitutional, reversing the Virginia Supreme Court's opinion written by Justice Carrico.

Thursday, May 29, 2003
History of mixed-race marriage in the U.S.

This review of Race Mixing: Black-White Marriage in Postwar America by Renee Romano and Interracial Intimacies: Sex, Marriage, Identity, and Adoption by Randall Kennedy includes this passage regarding the litigants in the Loving v. Virginia case:

"But by 1967, when the Supreme Court struck down bans on interracial marriage in Loving v. Virginia, only sixteen states still had such laws. In Loving v. Virginia, a white man, Richard Loving, and his black wife, Mildred Jeter, were arrested in Virginia on the grounds that their marriage license from the District of Columbia was invalid and that they had violated the sinister-sounding Racial Integrity Act. They were given a choice of a one-year jail term or exile from Virginia for twenty-five years by the lower court judge, Leon Bazile, who declared: "Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents.... The fact that he separated the races shows that he did not intend for the races to mix." (One wonders if conservative Virginia Christians noticed the judge's dismissal of the biblical story of the common origin of humanity in favor of the non-Christian Deist theory of "polygenesis.") In his majority opinion for the Supreme Court, Chief Justice Earl Warren ignored the Fourteenth Amendment and argued that the Virginia law violated the equal protection clause and fundamental privacy."

Saturday, June 28, 2003
The effects of the Texas sodomy case on Virginia law

n this post, I wrote:

Virginia likewise has criminalized sodomy, fornication, and lewd cohabitation. The most recent signs from the Virginia Supreme Court, oddly enough, are that some or all would uphold the constitutionality of these statutes. Justice Kinser cited them in her concurring opinion in the Arlington County "domestic partner" benefits case (in MS Word) from 2000. The majority cited the fornication and cohabitation statutes as the basis for the wrongful discharge claim in Mitchem v. Counts (in MS Word), also decided in 2000.

The viability of these criminal statutes is an element in a recurring issue in domestic relations cases, where one party may assert the constitutional privilege against self-incrimination to questions about sex acts other than with his or her spouse. The Virginia Court of Appeals' unpublished Goldmann case is one example of the self-incrimination issue.

Judge Merhige held that the fornication and cohabitation statutes were unconstitutional in Doe v. Duling, 603 F. Supp. 960 (E.D. Va. 1985), but this opinion was vacated on appeal for lack of standing, 782 F.2d 1202 (4th Cir. 1986), in an opinion by Judge Wilkinson. Roanoke gay rights lawyers also lost a constitutional challenge for lack of standing in the Virginia Court of Appeals, as reported in this 2000 opinion.

This one post has generated quite a number of hits from Googlers searching for the Virginia law of fornication.

On Thursday and Friday, the Daily Press reported here and here, the Roanoke Times reported here, the Richmond Times-Dispatch reported here, the Virginian-Pilot reported here, and Attorney General Jerry Kilgore conceded in this press release that the Lawrence case will have some effect on the laws of Virginia.

The likely result of the Lawrence case applied in Virginia is that the sodomy law is unconstitutional as applied to same-sex or opposite-sex scenarios, and the fornication and co-habitation statutes are probably also invalid. In fact, I would argue, the next time I see something like Mitchem (or Zysk v. Zysk), that the public policy of these statutes is trumped by the Constitution, and therefore the plaintiff has no claim or the defendant has no defense based on the illegality of fornication. (The Zysk case is the one where the Virginia Supreme Court held that a woman could not sue for contracting a loathsome social disease from her boyfriend because her injuries were the result of her illegal conduct in having sex with him.)

Tim Sandefur has this interesting post comparing the Lawrence decision with the Loving case, which struck down Virginia's ban on interracial marriage.

Tuesday, April 12, 2005
Justice Carrico and deference to the legislature

As I have recently read Virginia Hasn't Always Been for Lovers: Interracial Marriage Bans and the Case of Richard and Mildred Loving, it gave me occasion to read the Virginia Supreme Court opinion in the Loving case, written by Justice Carrico.

In that opinion, Justice Carrico applied the Court's earlier opinion in Naim v. Naim, 197 Va. 80, 87 S.E.2d 749 (1955), and refused to recognize that the U.S. Supreme Court's intervening decision in McLaughlin v. State of Florida, 379 U.S. 184 (1964), justified a different course. Loving v. Com., 206 Va. 924, 147 S.E.2d 78 (1966). Rejecting the policy arguments of the appellants, Justice Carrico wrote:

"A decision by this court reversing the Naim case upon consideration of the opinions of such text writers would be judicial legislation in the rawest sense of that term. Such arguments are properly addressable to the legislature, which enacted the law in the first place, and not to this court, whose prescribed role in the separated powers of government is to adjudicate, and not to legislate."

Justice Carrico joined in the dissent in the case of Lockhart v. Commonwealth Educ. Systems Corp., 247 Va. 98, 439 S.E.2d 328 (1998). In his dissent, Justice Compton explained that the majority had bypassed the statutory prohibition in then-Va. Code 2.1-725 against new causes of action based on the public policy of the Virginia Human Rights Act.

I compare these opinions with the analysis of the Court in Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005). Although not cited in Martin, the Court had recently applied the fornication statutes, in Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (2000), where the Court found that those statutes provided independent basis in public policy for the plaintiff's wrongful discharge claim, thereby avoiding the limitations of the amended section 2.1-725. In Mitchem, again with Justice Carrico joining in the dissent, the Court characterized the fornication statutes as among the "[l]aws that do not expressly state a public policy, but were enacted to protect the property rights, personal freedoms, health, safety, or welfare of the general public," on which a wrongful discharge claim could be based. After the intervening decision by the Supreme Court in Lawrence v. Texas, 539 U.S. 558 (2003), however, the same Court was willing in Martin to conclude that the fornication statute was irrational, and therefore unconstitutional. I suspect that Justice Carrico would have dissented in Martin, as well.

Sunday, January 15, 2006
On Philip Hirschkop has this wild profile of Virginia lawyer Philip Hirschkop, retiring at age 69, and most famous for his role in the Loving case.

The article says in part:

"In one six-year span, 17 disciplinary complaints were brought against him at the Virginia State Bar -- a distinction Hirschkop bears proudly. The complaints, he says, were 'never for screwing a client -- only for making public statements' about pending litigation."

The article also says:

"He also donned a 10-gallon hat and cowboy boots to win the acquittal of Texas oil magnates Nelson Bunker Hunt and W. Herbert Hunt in a federal wiretapping case.

The decision to represent the archconservative oilmen was a tough one for Hirschkop, says John Kenneth Zwerling, an Alexandria lawyer whose wedding Hirschkop had officiated at while wearing a coonskin cap. 'The [Hunt brothers] bought him a membership in the John Birch Society,' he says. 'And he bought them a membership in the ACLU.'

The Hunt brothers and other famous clients helped provide Hirschkop with the kind of money a radical lawyer could only dream of, especially 30 years ago. In his best years, Hirschkop says, he's earned well above $1 million."

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."

On nominations

Here is an article on reactions to President Bush's latest nominee to a district court judgeship in West Virginia - William Powell.

This commentary applauds Senators Warner and Webb for working together on naming candidates for the Fourth Circuit, while this post despairs of the non-cooperations between the White House and Senator Graham on picking a candidate for the Fourth Circuit.

On the passing of Roanoke lawyer Sam Garrison

Here the Roanoke paper describes the rollercoaster-like life and times of Roanoke lawyer Sam Garrison, who died a few days ago.

Tuesday, May 29, 2007

Oh, that sounds worthwhile

Here is an interesting snippet:

"Congressional junkets and greenhouse gases

Memorial Day weekend is over for the rest of us, but 'Memorial Day recess' continues for members of Congress, who aren't subject to the usual rules. And what are some members doing during the break? 'Reps. Rick Boucher, D-Va., Dennis Hastert, R-Ill., and four other members of the House Energy and Air Quality Subcommittee will travel for a week to Copenhagen, Berlin, Brussels and London,' according to one published report. The purpose of the 'fact finding mission'? To get a first-hand look at how these countries are reducing greenhouse gases, congressional aides have explained (apparently with a straight face).

How much would greenhouse gases be reduced, we wonder, if we could put a stop to congressional junkets?"

Judge Urbanski recommends a trial in the Thor's Hammer case

Citing Wikipedia once again in dealing with Edda, Magistrate Judge Urbanski recommended in this opinion that the W.D. Va. should deny summary judgment in the civil rights case brought by an inmate who claims that his request to have a 'Thor's Hammer' pendant in prison was unlawfully denied.

On judicial selection and judicial candidate questionnaires

From Idaho, this opinion piece expresses the view that the people can be trusted to elect good judges and those would be judges should have to answer questions about their views on issues of interest to the voters.

The author says in part:

"Imagine league officials interviewing a prospective umpire. 'Will you faithfully enforce the rules of baseball?' 'Of course.' 'What about the 'three strikes and you're out' rule?' 'Well, I can't comment on that because I might actually have to call a game someday.' It's no less ridiculous when a prospective judge says he will uphold the whole constitution, but refuses to commit to upholding its parts. But in the judge's case, the stakes are far higher."

On the cruise ship that sank off Santorini

Here is the story of a Virginia lawyer and his wife who were on the cruise ship that struck the rocks and sank at Santorini in the Greek Isles, a couple of weeks before we went on a similar cruise.

From the water, Santorini looks like a big rock, surrounded by water and a few other big rocks.

On swearing in court

The Charlotte paper weighs in here that a NC state court trial judge got it right when he ruled that witnesses of the Islamic faith could take their courtroom oaths on the Koran instead of the Bible.

Monday, May 28, 2007

Chief Judge Faber, on giving up being Chief Judge in the S.D. W.Va.

Chief Judge Faber is giving up being Chief Judge, to allow Judge Goodwin a chance to be chief judge for a while, according to this post, which I like mainly because of this quote:

"I'm fond of quoting the Mark Twain story about a man who led out of town on a rail," Faber said of the extra work involved in being chief judge. "If it weren't for the honor of the thing, I'd prefer to walk."

Why would Congressman Boucher be working on car rental excise taxes?

I was surprised to see Congressman Boucher is heading up the gang behind a new federal statute that would preempt state excise taxes on car rentals.

The article says: "Introduced yesterday by U.S. Representatives Rick Boucher (D-Virginia) and Chris Cannon (R-Utah), H.R. 2453 would prohibit future state or local discriminatory excise taxes on car rental consumers."

How many cars are rented in the Ninth District? None?

This sounds like the car rental business has learned a lobbying lesson on how to make an end run around local legislation they don't like - go to the statehouse, and if that doesn't work, go to Washington, D.C.

Historic service station in Charlottesville

It says here in the Hook that the Fry's Spring service station is being designated as a historic landmark.

Why not? Here is the application to the feds describing what makes this an interesting place. And, what I like about it, having entered Charlotteville from the west so many times, is that when you can see that building, you've made it once more - if the car breaks down, you can walk the rest of the way. (In the old days, that was more of an issue.)