Friday, December 21, 2007

The Highland County wind farm decision

The Roanoke paper reports here and the Richmond paper reports here on the conditions to the approval of the Highland County windfarm project. It sounds like the SCC went along with the intermediate position advanced by the Nature Conservancy - if my understanding is correct - that wind power can be done in ways that minimize the effect on bats and birds. I heard a great discussion about this case a few months ago at the VBA annual meeting.

The State Corporation Commission press release is here and the final order is here.

The press release notes: "Commissioner Judith Williams Jagdmann, while agreeing with approval of the project, dissented to that part of the SCC's order which provides for subsequent proceedings to increase the maximum annual payments required of Highland Wind for mitigation. Commissioner Jagdmann wrote that an 'applicant before this Commission, requesting a certificate of public convenience and necessity under Virginia statutes, deserves a more definitive ruling on the requirements that will be attached to such certificate.'"

Senator Webb's assignment for Christmas

The New York Times reports here that the U.S. Senate will stay open enough, with Virginia's own Senator Webb presiding a few (more) times, to keep President Bush from making recess appointments over the holidays.

WV's Justice Starcher will not run again

Here and here are articles on the decision by the outspoken Justice Starcher of the West Virginia Supreme Court, that he will not run again.

Justice Starcher wrote the funky opinion in the Harman Mining case, which is now the subject of a petition for rehearing, supposedly based in part on a ruling by the bankruptcy judge in Harman Mining's bankruptcy case in Virginia.

Virginia law decision from Third Circuit on unconscionability of arbitration clause in consumer contract

In Gay v. CreditInform, a panel of the U.S. Court of Appeals for the Third Circuit held that the arbitration clause in a contract with a consumer was not unconscionable, applying Virginia law because of a choice-of-law provision in the contract. The Court relied in large measure on the Virginia Supreme Court's analysis of unconscionability in Management Enterprises, Inc. v. Thorncroft Co., Inc., 243 Va. 469, 416 S.E.2d 229 (1992). Here is an article on the decision, from

I am unsurprised at the conclusion that waiver of the right to file a class action is not unconscionable under Virginia law, as there generally is no such thing as a class action under Virginia law.

Thursday, December 20, 2007

That other Minor who started at U.Va. in the fall of '83

It says here that Halsey Minor bought Carter's Grove for $15.3 million.

On the future of circuit court clerks

The latest VLW is reporting that the Judicial Council of Virginia "dopted Washington County Circuit Judge C. Randall Lowe's suggestion that the court-related portions of the clerk's duties be handled by a judge-appointed court administrator, but that the clerk of court continue to perform the other aspects of the job."

I wonder what that means, evidently it means something less than what the Futures Commission proposed.

Why not try Confederate dollars next time?

In Bryant v. Washington Mutual Bank, Judge Moon of the W.D. Va. once again rejected the claims of the plaintiff based on the plaintiff's attempt to pay off a mortgage by means of a "Bill of Exchange."

Judge Moon notes, "As I cautioned Plaintiff at oral argument, people frequently end up in prison for pursuing these sorts of schemes," and cites this page, which explains that why such a gambit creates some jeopardy of criminal prosecution.

How many FBI agents must participate in 6:29 am raid on your house before you are in custody?

Evidently, the answer is something less than 23, which was the number of agents who raided the defendant's house in the case of U.S. v. Colonna. In that case, the Fourth Circuit in an opinion by Judge Gregory, joined by Chief Judge Williams and District Judge Wilson of the W.D. Va., reversed the conviction and ordered a new trial, concluding that the defendant's statements to the agents at his house should have been suppressed for violation of his Miranda rights.

Definitely worth reading

If you go to the webpage of Dallas litigator Barry C. Barnett, there is a link where you can download a chapter he wrote, called "Techniques for Expediting and Streamlining Litigation," for the ABA Litigation Section's treatise on "Business and Commercial Litigation in Federal Courts."

I think you ought to go there right now and download this chapter, and read it - if you don't already own the eight-volume treatise, which I don't, although I'm sure it is a bargain as it lists for over $1,000. They might have it in the "treatise room" in Abingdon, one of my old hang-outs.

Reading over this, I was reminded of the litigation of the statute of limitations issue in the Evergreen case. The Evergreen cases were filed against multiple defendants by the one plaintiff group, out in the provinces, like the W.D. Va., with theoretically longer statutes of limitation, then transferred to the District of Columbia, where Judge Hogan had already granted summary judgment against one of the larger coal companies. The uneducable youth that I was, I did my best to force the Court to rule on limitations, despite the reservations of older and wiser counsel. The threshold issue was which law applies, the transferor forum (Virginia) or the transferee forum (D.C.). The Court answered, in a fairly subtle opinion, that on this particular issue where the federal cause of action borrows the state limitations period, that the limitations period from the transferor state would apply. In re United Mine Workers of America Employee Ben. Plans Litigation, 854 F. Supp. 914 (D.D.C. 1994). This bummed me out, because the federal courts had held before and since that the federal law of the transferee forum is what generally applies. See, e.g., Hartline v. Sheet Metal Workers' Nat'l. Pension Fund, 201 F. Supp. 2d 1, 3-4 (D.D.C. 1999); In re Korean Air Lines Disaster of Sept. 1, 1983, 829 F.2d 1171 (D.C. Cir. 1987).

So, we retooled, and argued that under Virginia law, it was still the case that the shorter D.C. statute would apply, by virtue of Virginia's borrowing statute, Va. Code 8.01-247 (all of which was borrowed under federal law for the ERISA claims). By that time, the dust had settled on the MDL, and I went and argued at a hearing with just myself and the lawyer for the Funds, Julia Penny Clark of Bredhoff & Kaiser. And, Judge Hogan agreed. United Mine Workers of America 1974 Pension Trust v. Big Star Coal Co., 1998 U.S. Dist. LEXIS 11530 (D.D.C. 1998). In a footnote, the Judge wrote: "This case is one of the many mine worker pension plan cases that were transferred to this Court from the Judicial Panel on Multi-District Litigation. The Court notes that this case presents an anomaly among these cases. Because of fortuitous factual circumstances and technicalities in the law, Defendants have been able to avoid liability in this case while many of their counterparts have not." So, as the invoker of the anomalies, fortuities, and technicalities, I was delighted.

In fact, that is my favorite footnote of all time. Have I told that story lately? Another part of it is here, and none of it can be told too many times.

Wednesday, December 19, 2007

Who are the lawyers of the Environmental Law Group?

The Environmental Law Group are among the counsel who filed the new suit against the expansion of Interstate 81, Shenandoah Valley Network v. Capka, Civil Action No. 3:07cv0066, now pending before Judge Moon in the Charlottesville division.

Four hundred years of Anglo-Saxon jurisprudence counts for something

"That Ms. Lowery has a boyfriend in Virginia is not grounds for denying her bail. Virginia is not a Third World country where extradition is not available."

Disappointed defense lawyer, quoted here, after his client was denied bail.

Monday, December 17, 2007

Just for a moment I was back at school . . .

Here is one of the YouTube versions of Dan Fogelberg's Same Old Lang Syne, one of those songs everybody knew when I went to college, even those who didn't like it. In those days, I'm not sure we knew what "that old familiar pain" was.

Dan Fogelberg died yesterday, evidently gone the way of the 140+ others on this list.

Judge Johnston in Beckley

Here the Beckley paper has a profile of S.D. W.Va. Judge, Thomas Johnston, of the youngest in the nation at age 38.

The article says this, among other things:

"The young judge said that he loves nothing better than sinking his teeth into an intriguing and complex legal issue and attempting to resolve a question not easily answered. To that end, he was asked in September to sit and hear oral arguments at a federal appeals court in Virginia.

'Basically, none of them are really easy cases by the time they get there. It’s fascinating. We have some of the best legal minds and legislative minds in Congress who do their best to write the best possible laws to accomplish what they’re supposed to accomplish. In spite of all that effort, human beings keep coming up with ways to come up with situations that don’t exactly fit the law. The law doesn’t exactly apply or wasn’t contemplated by the law. That’s the type of case that I get into that’s really interesting to sort out. We have these facts, and we have this law — how do they apply? That’s an interesting process.'

A self-described 'disciple of Christ,' Johnston lets his faith guide him in as many facets of his life and work as possible. Compassion, kindness and justice — what better traits to emulate for one who asserts that he follows in the footsteps, at work and at home, of the Man from Nazareth?

'I suppose being a follower of Christ is what informs the way I live life, both day to day and long-term. I want to do things to His glory. I try to treat people with kindness and compassion, but this job also involves justice as well. I try to do the best I can to reach just results in the cases I work on and to treat people with kindness.'"

Fourth Circuit upholds W.D. Va. conviction for making threats to U.Va.

In U.S. v. Bly, the Fourth Circuit in a published opinion by Judge King, joined by District Judge Conrad, with Judge Motz concurring separately, affirmed the conviction of the defendant under 18 U.S.C. 876(b), for threatening the University of Virginia, rejecting the defendant's arguments that his threats were protected speech, and that the University was not a "person" protected by the statute.

Judge King noted: "Threats — including threats of extortion — are not constitutionally protected simply because they are verbalized or written." On the issue of "personhood," the Court rejected the analogies to cases involving civil liability, such as 42 U.S.C. 1983, under which the state is not a person.

Judge Motz reached the same conclusion by another route, citing pre-1947 statutory construction cases from the Supreme Court.

Jennifer Bockhorst argued this interesting cases for the government.