Saturday, August 11, 2007

Yeah, net neutrality

Here is a story of AT&T not being neutral.

The headline says it all

From the Kentucky Law Review:

"Federal: California Lawyer Files Petition for Psychiatric Evaluation of Federal Judge but dismissed for lack of jurisdiction."

Here is the petition requesting the examination of Judge Coffman of the E.D. Ky.

UPDATE: By way of contrast, a Florida lawyer is trying to get a U.S. District Judge booted for religious bias, because he has hired clerks who graduated from Ave Maria and has attended "conservative" law seminars, according to this story on

On criticizing lawyer bias

From the Right:

"The Wall Street Journal has an editorial (subscrip. req'd) on the amicus brief filed by Congressmen Frank and Conyers in the Stoneridge case. The newspaper is critical of the congressmen's decision to have a law firm that does lobbying work for plaintiffs lawyers write the brief.

Quote of note: 'We trust the Supreme Court Justices, who are due to hear Stoneridge arguments as early as October, will notice the provenance of Mr. Frank's legal wisdom.."

Noted in this 10b-5 Daily post

From the Left:

"State Democratic Party Chairman William Lynch is questioning Governor Carcieri’s decision to pay a nationally known conservative lawyer to file a legal brief opposing same-sex marriage."

Noted in this Indiana Law Blog post

Who's afraid of federal court?

One group might include lawyers who haven't figured out how to deal with CM/ECF, as apparently was true in this case, where an appeal deadline was missed because the lawyer did not know about entry of an order and was not registered for CM/ECF in that court.

The first case I had with CM/ECF was in Ohio, and I thought it was cool. Now, I get so many e-mails from the W.D. Va. system. Fortunately, you can set up your profile so that your e-mails from the court also go to your assistant, or whomever else you like.

I also get the e-mails from an MDL case via a Lexis service, which is not quite as handy.

ABA drops proposal on limiting access to some criminal arrest records

BLT reports here that the ABA at its meeting in San Francisco will not act on a somewhat controversial proposal to endorse limiting public access to some criminal arrest records.

"The proposal, offered by the ABA’s Commission on Effective Criminal Sanctions, was aimed at making it easier for convicted people who have served their time, and those whose arrests never led to a conviction, to gain employment and housing without the stigma of past records that can be found in online databases and elsewhere.

. . .

The commission wanted the ABA to favor legislation at all levels, 'to the extent permitted by the First Amendment,' to restrict access to records of dismissed or acquitted indictments, and records of past convictions after a period of time, to law enforcement agencies only. But news media organizations protested that the proposal would seal off from the public a significant segment of public records that are important in holding law enforcement agencies accountable for past arrests and investigations."

This Ambrogi post via has links discussing the proposal.

The media people who opposed the proposal had another idea:

"Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press . . . said the way for the commission to achieve its goal of erasing the stigma of past criminal records is not to seal the records but to make such discrimination by employers and landlords illegal."

That's not a promising concept - unless there is a corresponding limitation of the liability of employers who hire arrestees.

UPDATE: In an unrelated development, this post among others reports on how the New York Times Supreme Court reporter got the C-SPAN cameras booted from a public appearance, which suggests that no one's commitment to the ideals of the First Amendment is absolute.

On opinions from U.S. district courts

This article, titled "Docketology, District Courts, and Doctrine," by three Temple law professors, concludes:

"Our analysis supports the view that trial judges employ opinions as briefs to appellate courts, seeking to reduce the professional and personal risks arising from appellate review."


"We argue that judges
believe that individual decisions within cases accompanied by opinions are less likely to be reversed than those without such reasoning. Therefore, judges may write opinions – instead of mere orders – for decisions they believe will be reviewed by a higher court."

Who knew?


"We conclude that drafters of Restatements, treatises, and other qualitative descriptions of the common law remain too wedded to opinions, and ignore the ways in which the dozens of judicial choices in each case, ranging from motions to compel, to partial grants of motions to dismiss, to motions in limine, together create important, unseen, limits and glosses on doctrine."

Thus, I heard stories of "the law of Buchanan County."

The article is an interesting but complicated analysis of opinion by federal district judges, and worth checking out.

Fourth Circuit reverses sanctions against counsel for post-trial peek at jurors' notes

Brian Peterson links here to the opinion from the Fourth Circuit in the Thomas case, a per curiam decision from the panel of Judges Widener, Michael, and Traxler, with Judge Widener not participating. has this article on the case.

There is no formal local rule in the W.D. Va. which is the equivalent of N.D. W.Va. Rule 47.01, although Chief Judge Jones and perhaps others have been inserting similar provisions in their orders, as stated in Chief Judge Jones' practices and procedures.

Some years before this practice came to be, I had this experience.

Concurring Opinions has this interesting post on jurors who blog about their experiences. It concludes: "Of the jurors who blog, surely the vast majority don't admit misconduct, as the juror did in the robbery case. In the rare cases in which blog entries indicate that there was potential misconduct (such as the juror who admitted to "conscious manipulaiton"), it is certainly the right and responsibility of defense attorneys to appeal the verdict. In fact, I believe that searching for blogs and internet postings of all jurors will soon be an automatic response to losing a case. It won't be long before this practice is completely ordinary, if not a requirement of being a zealous advocate."

Who did your wedding?

This New York Times article says:

"[T]hree states besides Connecticut — Alabama, Virginia and Tennessee — as well as other jurisdictions, prohibit weddings performed by ministers who do not have active ministries.

Perhaps the reference is to Va. Code 20-23, which says: "When a minister of any religious denomination shall produce before the circuit court of any county or city in this Commonwealth, or before the judge of such court or before the clerk of such court at any time, proof of his ordination and of his being in regular communion with the religious society of which he is a reputed member, or proof that he holds a local minister's license and is serving as a regularly appointed pastor in his denomination, such court, or the judge thereof, or the clerk of such court at any time, may make an order authorizing such minister to celebrate the rites of matrimony in this Commonwealth. Any order made under this section may be rescinded at any time by the court or by the judge thereof."

But, there is also Va. Code 20-25, under which "Any circuit court judge may issue an order authorizing one or more persons, resident in the circuit in which the judge sits, to celebrate the rites of marriage in the Commonwealth. Any person so authorized shall, before acting, enter into bond in the penalty of $500, with or without surety, as the court may direct."

I once heard that a certain bearded Assistant United States Attorney obtained such an order and performed a marriage ceremony.

Section 20-25 also says: "Any judge or justice of a court of record, any judge of a district court or any retired judge or justice of the Commonwealth or any active, senior or retired federal judge or justice who is a resident of the Commonwealth may celebrate the rites of marriage anywhere in the Commonwealth without the necessity of bond or order of authorization."

So, you could get a judge, if he or she was willing, to perform your rites of marriage anywhere in the Commonwealth.

UPDATE: A reader tells me his wedding was performed by a justice of the Virginia Supreme Court, and he is also aware of a wedding presided over by a Virginia sheriff.

Audio files from federal courts

This press release from the Administrative Office of U.S. Courts says:

"August 6, 2007 — Two federal courts today became the vanguard of a pilot project to make digital audio recordings of courtroom proceedings publicly available online.

The U.S. District Court in Nebraska and the U.S. Bankruptcy Court for the Eastern District of North Carolina have integrated their recording and Case Management/Electronic Case Files (CM/ECF) systems to make some audio files available the same way written files have long been available on the Internet.

Three other courts – the U.S. District Court for the Eastern District of Pennsylvania, the U.S. Bankruptcy Court in Maine, and the U.S. Bankruptcy Court for the Northern District of Alabama – plan to join the pilot project later this summer.

The audio files are accessible through the Public Access to Court Electronic Records (PACER) system. More than 700,000 subscribers already use PACER to access docket and case information from federal appellate, district, and bankruptcy courts.

Digital audio recording has been an authorized method of making an official record of court proceedings since 1999, when it was approved by the policy-making Judicial Conference of the United States.

Digital audio recording is used in most bankruptcy and district courts (where magistrate judges account for most of the usage). In addition, digital recording is used by 37 of the 642 active district judges. In courts with digital audio recording, computer disks of hearings have been available for the authorized fee of $26, but prospective purchasers have had to make a trip to the clerk of court's office.

During the six-to-12-month pilot project, Internet access to the same content will cost a minimum of 16 cents – eight cents for accessing the docket sheet and another eight cents for selecting the audio file.

The Electronic Public Access Program Office of the Administrative Office of the United States Courts will determine what the appropriate fee should be if such access becomes permanent. The impact on band-width, costs of the required technology, and other factors will be part of that determination."

On research at Bluefield State

This article from Inside Higher Ed begins:

"The government arm that oversees most federally funded research involving human subjects — encompassing methodologies from surveys and oral histories to psychology experiments and medical trials — last month informed Bluefield State College that it must suspend its relevant projects after an investigation revealed a series of alleged compliance failures.

The small historically black commuter college in southeastern West Virginia, which offers associate and bachelor’s degrees, ran into trouble when the Office for Human Research Protections sent a letter in August 2006 alleging that the campus institutional review board had approved three faculty research projects in 2004 without considering key pieces of information — such as the purpose of the studies, details on participants’ informed consent and ways to protect their privacy — and questioning whether a legitimate campus board even existed at the time."

Friday, August 10, 2007

Interesting stuff today

Hugh Lessig writes here that one rationale for the in-state only aspect of the abusive driver fees is this: "Virginia drivers would chiefly benefit from road improvements that the fees pay for, not those out-of-state commuters or beach-goers." This Post article describes the first Northern Virginia challenge to the abusive driver fees. This AP article describes the arguments in the Henrico County circuit court case.

There might be a way to make an empirical study of the effects of abusive driving by residents as opposed to non-residents, but if the issue is unclear, normally, the legislative gets to make the call - there is no constitutional requirement that the General Assembly has to operate with laser-like precision in their lawmaking.

Jerry Markon writes here in the Washington Post that the conservative majority on the Fourth Circuit has been frittered away, and that there could soon be a long-lasting Democratic majority on the Court. I think that the attempts to categorize the judges on the Fourth Circuit as liberals and conservatives is somewhat overdone, the liberals are more conservative and the conservatives are more liberal than they get credit (or blame) for being in the press. The WSJblog has this take on the article, ConfirmThem has this long take, and SC Appellate Blog has noticed it as well.

This Style Weekly article on Oliver Hill is maybe the best I've read.

Thursday, August 09, 2007

Members not liable for FMLA claim against multi-jurisdictional authority

In Miller v. County of Rockingham, Judge Conrad of the W.D. Va. held that the political subdivisions that formed a regional park authority could not be sued on the FMLA claim of an employee of the authority.

Good dog, bad dog

Via the George Allen blog, here is a ode to a dog named Free, by the Richmond paper's Ross Mackenzie.

My day has been about taking to the upholster a chair that Jenna has been eating.

On suing Social Services over their role in a custody case

People sometimes figure out that I do some work in section 1983 litigation, and call me up wanting to sue over various Social Services departments, which they claim have violated their rights in connection with child custody matters.

And, such was the claim before Judge Moon in Nelson v. Green, in which the Court decided to stay the civil rights case while the state court proceedings were still unresolved.

When does amended complaint adding new party relate back for limitations purposes

In Justus v. Buchanan County, the jail suicide case, Chief Judge Jones of the W.D. Va. concluded that the plaintiff's amended complaint adding a new defendant would relate back for purposes of the statute of limitations to the date of the original filing as to the new defendant, where the original complaint included as defendants the Buchanan County sheriff's office, and the new complaint named the Sheriff himself, citing the Fourth Circuit's recent opinion in Goodman v. Praxair, Inc.

In Goodman, there was some dispute among the judges about whether to address the relation-back issue. Judge Niemeyer wrote in a footnote:

"In her concurring opinion, Judge Williams has stated that she would not reach the relation-back issue because it is unnecessary to the resolution of the appeal and is issued solely to provide guidance.

First, our court regularly issues opinions to provide guidance on remand in the interest of judicial efficiency. See United States v. Barile, 286 F.3d 749, 759 (4th Cir. 2002) (Williams, J.) ("Whether the excluded portion of Sheridan’s testimony is admissible absent the district court’s Rule 16 sanction is an issue that may arise again should a new trial be required on remand, and we therefore address it here"); Resolution Trust Corp. v. Allen, 16 F.3d 568, 573-74 (4th Cir. 1994) (Williams, J.) ("Although remand for the district court to address these arguments would be the normal course, we believe it would be a fruitless exercise here. The parties have thoroughly briefed the [ ] issue before us . . . . Therefore, in the interest of judicial economy . . . we will proceed to address the merits"). Accord Willingham v. Crooke, 412 F.3d 553, 561 (4th Cir. 2005); United States v. Ebersole, 411 F.3d 517, 535 (4th Cir. 2005); United States v. Ruhbayan, 460 F.3d 292, 302 (4th Cir. 2005); Studio Frames, Ltd. v. Standard Fire Ins. Co., 369 F.3d 376, 383 (4th Cir. 2004); Rowland v. Am. Gen. Fin., Inc., 340 F.3d 187, 194 (4th Cir. 2003); Knussman v. Maryland, 272 F.3d 625, 642 n.13 (4th Cir. 2001); United States v. Dickerson, 114 F.3d 464, 468 (4th Cir. 1997); Am. Trucking Ass’ns, Inc. v. Fed. Highway Admin., 51 F.3d 405, 409 (4th Cir. 1995); Klugh v. United States, 818 F.2d 294, 299 (4th Cir. 1987).

But in this case the relation-back issue is a viable dispute that has been presented to us and is much more than something to be decided as a matter of guidance. We resolve the limitations issue only as a pleading matter, holding that a Rule 12(b)(6) motion to dismiss cannot in this case dispose of the limitations issue. We do not dispose of the limitations question on the merits, as that requires further proceedings. We decide the relation-back issue because the district court’s holding on that issue is broader than the limitations issue and would, if left intact, result in an erroneous judgment if the further proceedings revealed that the amended complaint was filed outside of the limitations period. Moreover, the district court decided both issues, and both issues were appealed to us. Not deciding the relation-back issue now would leave in place an erroneous decision regardless of how the limitations issue turned out.

In addition, counsel for the parties assured the court of the viability of both issues, representing to the court at oral argument that counsel for the Praxair defendants in fact had transmitted a letter to Goodman, refusing his demand more than three years before the amended complaint was filed. Once that letter is filed with the district court, we would have to address the relation-back issue in a second appeal back-to-back with this appeal."

Judge Williams came back in her opinion with a quote from then-Judge Roberts: "[W]e should adhere to the 'cardinal principal of judicial restraint,' that 'if it is not necessary to decide more, it is necessary not to decide more.' PDK Labs., Inc., v. Drug Enforcement Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment)."

It is always amusing when the appeals court judges cite each other's opinions against each other.

Judge Conrad rejects challenge to fairness of jury pool

In U.S. v. Kellam, Judge Conrad of the W.D. Va. concluded, among other things, that the inclusion of only one black person in the venire of 45 was not a per se violation of the defendant's right to a venire that represents a fair cross section of the community.

Tuesday, August 07, 2007

Is discrimination against residents always an Equal Protection violation?

I am following from afar the clammer over the abusive driver fees.

There is at least one case I've seen, dealing with a state's implied consent law, where the residents, or some of them, get a worse deal than non-residents. Here is the discussion in that case:

"The appellant asserts that § 5-65-205 also allows for enhanced penalties for an Arkansas resident who has a valid driver's license and prior convictions, but there are no enhanced penalties for subsequent offenses committed by a resident without a license or a nonresident. The statute does provide for different penalties depending on whether (1) the person is a resident of Arkansas with a valid state driver's license, (2) the person is a resident of Arkansas without a valid state driver's license, and (3) the person is not a resident of Arkansas. However, the Equal Protection Clause does not preclude all statutory classifications. Hamilton v. Hamilton, 317 Ark. 572, 879 S.W.2d 416 (1994). Indeed, we presume the statutes passed by the General Assembly are not unconstitutional and will uphold a classification in the face of an equal protection allegation if there is any basis for the classification. McFarland v. McFarland, 318 Ark. 446, 885 S.W.2d 897 (1994). A party challenging a statute must bear the burden of proving it unconstitutional. Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994). The appellant has the burden of proving that the act is not rationally related to achieving any legitimate objective of state government under any reasonably conceivable state of facts. Reed v. Glover, supra.

We merely consider whether any rational basis exists which demonstrates the possibility of a deliberate nexus with state objectives, so that the legislation is not the product of utterly arbitrary and capricious government purpose and void of any hint of deliberate and lawful purpose. Reed v. Glover, 319 Ark. 16, 889 S.W.2d 729 (1994). It is clear that the legislature has created varying penalties for violation of the implied consent law; it is equally clear that possession of an Arkansas driver's license carries with it the implied obligation to abide by state laws pertaining to driving. It is also significant that residents of Arkansas who drive without a valid driver's license and nonresidents who drive while their driver's license or driving privilege as a nonresident has been suspended are subject to additional punishment. See Ark.Code Ann. § 27-16-301 and § 27-16-303 (Repl.1994). Section 27-16-301 provides it is a misdemeanor for any person to violate any provisions of the Uniform Motor Vehicle Driver's License Act; the act states that no person shall drive any motor vehicle without a valid driver's license. See Ark.Code Ann. § 27-16-602 (Repl.1994). Section 27-16-303 provides that any person whose driver's license or driving privilege as a nonresident has been suspended and who drives any motor vehicle upon the highways of this state is guilty of a misdemeanor. For these reasons, it cannot be said that Section 5-65-205, and its varying punishments, are completely devoid of a legitimate purpose."

Cook v. State, 321 Ark. 641, 647-649, 906 S.W.2d 681, 685 (1995).

Monday, August 06, 2007

Oliver Hill interviews

1. VQR Winter 2004 - Julian Bond interview Oliver Hill

2. The HistoryMakers, November 18, 2003

3. National Visionary Leadership Project, 2003

4. VCU Special Collection, Voices of Freedom, November 13, 2002

5. Thomas Jefferson Center, February 2000

6. WDBJ, Channel 7, interviewing Oliver Hill and Robert Carter, July 13, 1958

7. WDBJ, Channel 7, interviewing Oliver Hill and Robert Crawford, August 1956

On Oliver Hill

Virginia -

Civil Rights Crusader
, by Ellen Robertson, Michael Paul Williams, and Lindsay Kastner, Richmond Times-Dispatch

The 'last lion'
, by Ellen Robertson, Michael Paul Williams, and Lindsay Kastner, Richmond Times-Dispatch

Hill fought long battle to make America live up to its promise, by Michael Paul Williams, Richmond Times-Dispatch

Civil rights pioneer dies, by Neil Harvey, Roanoke Times

National -

Va. Lawyer Was at Fore of Attack on Segregation, by Adam Bernstein, Washington Post

Civil Rights Attorney Oliver Hill Dies, by Bob Lewis, Associated Press

Anti-segregationist lawyer Hill dies at 100
, Reuters

Reaction to the death of Oliver W. Hill, AP:

"Oliver Hill dedicated his life to fighting against racism and pushing forward the civil rights and freedoms for generations of Americans. His dedication to this nation was further demonstrated through his military service during World War II. Oliver Hill's life serves as a lesson to all of us of how far we have come and how hard we must continue to work to keep our society moving forward."

U.S. Sen. Jim Webb, D-Va.

"Mr. Oliver Hill was a remarkable individual whose contributions toward social justice did so much to advance our society. He was among the vanguard in seeking equal opportunity for all individuals, and he was steadfast in his commitment to effect change. He will be missed, and we extend our sincere condolences to his family."

Former Gov. L. Douglas Wilder, the nation's first elected black governor, a Hill confidant and now mayor of Richmond.

"Few individuals in Virginia's rich history have worked as tirelessly as Oliver Hill to make life better for all of our citizens. His life's work was predicated on the simple truth that all men and women truly are created equal.

"With righteous determination, a sense of honor, and at considerable personal risk, Mr. Hill methodically and skillfully worked within the legal system to win landmark cases in voting rights, equal pay, better schools, and fair housing.

"As a pioneer for civil rights, an accomplished attorney, and a war veteran, Mr. Hills dedication to serving the Commonwealth and the country never failed. And, despite all of the accolades and honors he received, Mr. Hill always believed his true legacy was working to challenge the conscience of our Commonwealth and our country.

Virginia Gov. Timothy M. Kaine.

"With an unwavering sense of personal responsibility, a commitment to the idea that all men and women are created equal, and a sense of humor that kept us all laughing at his 100th birthday celebration this past May, Oliver Hill helped pave the way for equal opportunity in the commonwealth and the country.

Former Virginia Gov. Mark R. Warner.

"Both in the courtroom and in the broader court of public opinion, Oliver Hill stood bravely and forthrightly for the equality of all mankind. His tireless work ensured that the Virginia we know today is one in which all men are not only created equal, but are treated equally under the law."

Attorney General Bob McDonnell.

Flags at half-staff for civil rights leader, AP


WSJ Law Blog - Law Blog Obituary: Oliver Hill

ACS Blog - Oliver White Hill dies at 100

Sorensen Institute Blog - In Memoriam: Oliver Hill

Wikipedia, Oliver Hill

Justice delayed

Here's a West Virginia story on Buchmeyer:

"This marvelous contribution is from Kevin A. Wiggins of Steptoe & Johnson, P.L.L.C. in Clarksburg, W.V.

Wiggins writes: "A local businessman in rural West Virginia who owns an automobile tire store wanted to retire and move to Florida. However, he couldn't find any buyers so he decided to liquidate his inventory by selling it for 90 percent less than the retail price."

The national tire chain heard what he was up to and hired Kevin's firm to obtain an injuction. They promptly went before the judge to schedule a hearing. After Wiggins explained to the judge why his client wanted the injunction, the judge said, in a southern drawl:

"I don't think I can give you a hearing until after 4:00. I have to get new tires for my car."

Sunday, August 05, 2007