On losing faculty from Virginia's public colleges and universities

The Virginia Gazette has this report on the difficulty of keeping faculty members at William & Mary.

On singing the national anthem

My favorite sports highlight of the year was Coach Mo Cheeks helping a girl sing the National Anthem in Portland during the NBA playoffs - here is a video clip (requires Windows Media player) of the coach helping the girl remember the words, and the crowd joining them. (I hope this link never goes bad, because I enjoy it every time I look at it.)

Similarly, today's Roanoke Times has this account of the people who sing the National Anthem at the Salem Avalanche baseball games and minor league sports events in the Roanoke area.

Tate concedes to Potts, rather than contest primary margin of 106 votes

As reported here in the Washington Post, challenger Mark Tate has conceded victory to incumbent Sen. Russell Potts in the Republican primary held on June 10. Potts came the closest to winning of the three noteworthy anti-tax challengers to Republican incumbent Senators. He concluded that a recount would not change the numbers enough to affect the outcome, where the margin in the official count was 106 votes.

More on the Virginia abortion case

The Virginian-Pilot has this report on the opposing views of Attorney General Jerry Kilgore and the lawyer challenging the new Virginia statute regulating abortion, which has been enjoined preliminarily by Judge Richard Williams of the E.D. Va.

Available here is AG Kilgore's statement "Regarding Appeal of Infanticide Law Ruling."

Chesapeake jury no easy picking for Malvo

The Virginian-Pilot has this report on how picking a jury in Chesapeake will still be a challenge for the parties to the Malvo sniper trial, which could last for two months.

As reported here, the trial in Chesapeake is scheduled to start November 10.

Circuit Court Judge John Kilgore

The Kingsport Times-News has this report on the swearing-in of John Kilgore as the new judge for the 30th Judicial Circuit, which includes Lee, Scott, and Wise Counties in Virginia. Judge Kilgore, among other things, served as a law clerk for U.S. District Judge Glen Williams, who was unable to attend the event. Judge Birg Sergent explained the circumstances of Judge Williams' absence, and waved a bundle of papers, stating that he had in written form the text of the hour-long speech Judge Williams would have given had he been there.

In Senator Wampler's remarks yesterday, he noted that he missed the last swearing-in at the same courthouse, for J&DR District Court Judge James Mickey Shull, because of scheduling conflict, which led Judge Stump to interject from the bench, "We heard you were at the NASCAR race." Sen. Wampler replied, "A senator's duties are many."

John Ashcroft approves seeking death penalty against 72 year-old man in W.D. Va.

In the Charles Gilmore murder case, now pending in the U.S. District Court for the W.D. Va., the Attorney General of the United States has approved the prosecutors request to seek the death penalty against Gilmore, who is now age 72, for his role in the multiple killings that occurred 14 years ago in Tazewell County, Virginia. The Roanoke Times has this report.

Lawsuit against Roanoke newspaper for publishing bruised woman's photo dismissed

Reporting on itself, the Roanoke Times had this article on the dismissal by a state court judge of a lawsuit brought by a woman, of whom the Times published a picture showing her bruised face, allegedly without her permission, in connection with a cover story on domestic violence.

Rosary beads on mirror lead to years in penitentiary

The Roanoke Times had this story about a Latino woman driving a van on the interstate with out-of-state license plates, who was pulled over for having rosary beads dangling from her rear view mirror, and is now going to federal prison for 46 months because the police discovered 6 kilos of cocaine in the van.

Latest license plate flap in Tennessee - Sons of Confederate Veterans want to display rebel flag

The Tennesseean has this report on the plans of the Sons of Confederate Veterans to apply for a Tennessee license plate for their group, that would display the Confederate flag.

In Virginia, a panel of the Fourth Circuit upheld the license plate for the Sons of Confederate Veterans in this opinion, and then the petition for rehearing was denied, with several members of the court writing concurring or dissenting opinions, as shown here.

More on Judge Lee's pop-up ad ruling

This article contains further discussion of the decision by Judge Gerald Bruce Lee of the E.D. Va. in the U-Haul pop-up ad case.

Maryland statute limiting HMO's subrogation rights preempted by ERISA

In Singh v. Prudential Health Care Plan, Inc., the Fourth Circuit in a published opinion by Judge Niemeyer joined by Judges Michael and King held that plaintiff's state law claim regarding the subrogation rights of a health maintenance organization was preempted by ERISA, and remanded the case for consideration those claims under ERISA.

Injunction against relitigation by disgruntled class member upheld

In Scardelleti v. Rinckwitz, the Fourth Circuit in a per curiam decision for the panel of Judges Williams, Michael, and Shedd affirmed the district court's order enjoining a disgruntled class member under the All Writs Act from trying to relitigate in other courts the same issues that were resolved in a court-approved class action settlement in the District of Maryland.

What to do when you think the U.S. government is holding out on your FOIA request

In Heily v. U.S. Department of Commerce, the Fourth Circuit in a per curiam decision for the panel of Judges Widener and Niemeyer and Senior Judge Hamilton held that the the appellant had shown no basis to look beyond the affidavits and privilege logs submitted by the Department of Commerce in describing the documents not produced that were responsive to the appellant's FOIA request.

Judge Jones overrules disability determination in ERISA case

In Davidson v. Liberty Mut. Ins. Co., Judge Jones ruled that the ERISA plan administrator's determination regarding the plaintiff's disability was unsupportable and therefore ordered the administrator to provide him with long-term disability benefits. The defendant argued that there were jobs available within the physical capacity of the plaintiff, while the plaintiff argued that a determination of what jobs were available should take into account the plaintiff's advanced age. The court concluded that the "failure to analyze whether Davidson’s age might be a barrier to his entry into another occupation precludes any finding that Liberty Life engaged in a principled reasoning process."

Virginia attorney general appeals preliminary injunction in abortion case

As reported here and here, Virginia Attorney General Jerry Kilgore will appeal to the Fourth Circuit the decision by Judge Richard Williams of the E.D. Va. to enjoin preliminarily the enforcement of the new Virginia abortion statute.

Also, the Attorney General received some criticism for hiring special outside counsel to represent the Commonwealth in the case, as reported here.

Judge Roush's opinion and order on the transfer of venue in the Malvo case

Findlaw has the letter opinion and order from Judge Roush in deciding to transfer the Malvo case to Chesapeake.

Ah, old Uncle Publius

How could I resist a blog called Publius Minor?

Thomas Jefferson and football

Seth the Larval Lawyer makes the point here, and I agree, that those old Wahoos who were opposed to allowing Virginia Tech into the Atlantic Coast Conference seem to believe that "Mr. Jefferson actually invented the ACC," part of the same mentality that opposed the renaming of Clinch Valley College to the University of Virginia College at Wise. Maybe such thinkers should insist that Virginia must withdraw in protest from the ACC, now that Virginia Tech's membership is secure, or at least make a motion to kick out those other interlopers, Ga. Tech and Florida State (and now Miami).

Just so we're clear on this - the only ones who are cheapening the University are the legislators. They maybe entirely or partly justified in doing so, or not at all, but that is the whole story. It is no surprise that athletic programs look for ways to maximize profits when there is no prospect of outside money coming from the government. At the judicial conference, Dean Gene Nichol, commenting on the different routes taken by the U.Va. and UNC law schools on public funding, said that "if Thomas Jefferson were alive today, he'd be a Tarheel."

That one donation could have spoiled the whole thing

In Carefree of Maryland, Inc. v. Carefree Pregnancy Centers, Inc., the Fourth Circuit in a published opinion by Judge King joined by Chief Judge Wilkins and Judge Motz answered "no" to the question of "whether an Illinois organization subjected itself to personal jurisdiction in Maryland by operating an Internet website that allegedly infringed the trademark rights of a Maryland insurance company," where 0.0174% of the Illinois company's donations came from Maryland, and "[a]part from a single online donation made by the lawyer for Carefirst in this proceeding, there is no evidence that the Maryland donations were made through the website."

Fourth Circuit upholds NLRB's alter-ego analysis in electric workers case

In NLRB v. Kodiak Electric Co., Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Traxler and Shedd and Senior Judge Hamilton granted the NLRB's petition for enforcement where a unionized electrical contractor was not too subtle in establishing and sending work to a non-union company in his wife's name.

My favorite part of the facts is this paragraph:

"In March of 1999, Timothy Demski and a Porter project manager, Peter Robey, discussed manpower problems on the Kodiak Line projects. Demski asked Robey to 'write the dirtiest, nastiest letter that [Porter] could' to terminate the contract with Kodiak Electric. J.A. 39. He also told Robey that Kodiak Electric had a "sister company" that did not have the same manpower constraints and could easily absorb the workload that Kodiak Electric had proved unable to handle. J.A. 39. On March 17, Robey sent a letter to Kodiak Electric terminating its contract for the work at the Rockview project. That same day, Porter contracted with Kodiak Line to complete the remainder of the electrical work at a price that reflected the balance of the original contract with Kodiak Electric."

The record does not say how dirty or nasty was the letter written by the project manager at the union contractor's request.

Judge Wilson rules in Walton death penalty case

Death row inmate Percy Walton, who was scheduled to be executed in May but was able to obtain a stay with claims that he is mentally retarded or incompetent, will get a full evidentiary hearing on the issue of whether he is competent but not on the issue of mental retardation, according to the opinion issued today by Judge Samuel Wilson of the W.D. Va. Judge Wilson found specifically that Walton is not mentally retarded. On the competency issue, Judge Wilson noted that Walton's lawyers were claiming that he "suffers from a 'psychotic illness' that has deteriorated significantly since 1999."

On the retardation issue, Judge Wilson focused on test results from around the time when Walton was age 18. This suggests to me that special education records will become a major focus point in death penalty litigation - the public schools have records of the IQs of all the children in special education, and retest them every three or four years, until they are 18 or 19 and stop going to school.

More on the injunction against the new Virginia abortion law

This article in today's Virginian-Pilot points out how Judge Richard Williams questioned the lawyers for the Commonwealth about the statements of Governor Warner in opposition to the new law, asking, "he speaks for the people, doesn't he?"

Chesapeake wants no Malvo, but Judge Roush moves case there

The AP reports here that Judge Roush of the Fairfax County Circuit Court has transferred the venue for the John Malvo sniper trial to the City of Chesapeake.

Earlier, I saw, via Virginia Lawyers' Weekly, that the Virginian-Pilot was reporting here that the City of Chesapeake has notified Judge Roush that it does not want the Malvo trial transferred to that fair city.

I never heard of something like that before - maybe the federal prosecutors should have solicited similar letters from every other jurisdiction in the state.

Is Tim Sandefur speaking my mind on sex laws in Virginia?

Tim Sandefur asks here the question "does Lawrence mean that the laws banning dancing, which I hear are still on the books of some quaint Virginia towns—are unconstitutional?" and provides my answer, although I might not have said, "yes, thank God!"

Recalling the old Roy Clark song, "Thank God and Greyhound You're Gone," I think the Lawrence case involved something other than divine intervention. (Hey, I didn't watch 20 years of Hee Haw for nothing.)

Defective police dog suit in Southwest Virginia

The Town of Pound in Wise County is suing a police dog service for selling it a dog that doesn't know enough about how to be a police dog, and because a Pound police officer was given farm work instead of training time with the dog, as reported here.

John Kilgore to be sworn in as new Circuit Court judge for 30th Circuit

Tomorrow, John Kilgore will be sworn in as Circuit Court judge for Scott County, as reported here. John Kilgore is a young man (meaning younger than I) and has served most of his legal career as the Scott County Commonwealth's Attorney, after clerking for U.S. District Court Judge Glen Williams, who is scheduled to administer the oath to Judge Kilgore. Judge Kilgore is replacing Judge Ford Quillen, who served one term on the court after many years of distinguished service in the legislature.

More on shareholder litigation against Bristol's own King Pharmaceuticals

One of the reasons why I keep up with The 10b-5 Daily is because of the pending cases in federal (and state) court against King Pharmaceuticals. According to this story, there are now 25 pending cases against King in the E.D. Tenn.

The Kingsport paper reports here that new Judge Greer will recuse himself from hearing the King cases.

I haven't tried to unravel the allegations, but I watch these cases because the people who work for this company are among the best people I know, and I would be dumbfounded if the cases have any merit, and I wonder how many other securities fraud cases are like these. I hope the King cases go the way of this Merrill Lynch case, dismissed for failure to state a claim.

BVU cable starts providing service

After two lawsuits, two new laws, and lots of time and effort, Bristol Virginia Utilities is now providing cable television service along with high-speed Internet and telephone service, and the Bristol paper has this story on the first connected cable customer.

The hazards to employers of employees driving while talking on the phone

This article from Consumer Reports notes that:

"Later this year, Yoon vs. Wagner, a $30 million lawsuit, is scheduled for trial in Virginia. An attorney is being sued for killing a 15-year-old girl while driving and allegedly conducting business on her cell phone. The litigation has prompted many businesses nationwide to prohibit cell phone use by their employees while driving, according to the Insurance Information Institute, an industry group."

More on the Yoon v. Wagner case, said to be pending in Loudoun County Circuit Court, can be found here, here, here, and here.

Venue decision in Malvo case to be made public on Wednesday?

According to this report, a judge for the Circuit Court of Fairfax County will issue a ruling on Wednesday on the motion of accused sniper John Malvo for a change of venue.

I suspect that the judge just might move the case from Northern Virginia, one less thing for an appeal, and there is something to the notion that the fear of the snipers probably affected almost everyone living in the D.C. area. Geez, I think they closed schools in Richmond when there was some rumor that the sniper had come that far down I-95.

At the Fourth Circuit judicial conference, oddly enough, one of the speakers was Sonny Seiler, the real-life lawyer and sometime actor who represented Jim Williams in the long-running murder case that was the subject of the book, Midnight in the Garden of Good and Evil. Williams was tried four times and won a defense verdict only after a new trial judge moved the case from Savannah to the other side of the state in Augusta. Notwithstanding Mr. Seiler's entertaining account of how the case was won using a cat and a nurse, the change of venue seems to have been a major factor in the final outcome. In the Malvo case, not just the society people, but everyone was affected by the shootings.

More on preliminary injunction in Virginia abortion case

The Washington Post has this story on the preliminary injunction hearing before Judge Williams, in which he enjoined enforcement of the new Virginia abortion statute pending the determination of the merits of the constitutional challenge to the law.

Governor Warner postpones execution of Bobby Wayne Swisher

The AP has this report on the action by Virginia Governor Mark Warner to post the execution of death row inmate Bobby Wayne Swisher, who was scheduled to die tonight, but now has an extra three weeks to try to make some progress with his argument that the jury in his case was improperly instructed.

E.D. Va. rules pop-up ads do not violate intellectual property rights

As reported here (on pages 2-3) and here (registration required), Judge Gerald Bruce Lee of the E.D. Va. has ruled that pop-up ads do not violate the copyright or trademark rights on the owners of the websites on which they appear, in a case brought by U-Haul against WhenU.com.

UPDATE - CNet has more here on Judge Lee's decision in the U-Haul pop-up ad case.

E.D. Va. judge enjoins new Virginia abortion statute, amid procedural maneuvers

Judge Richard Williams of the E.D. Va. entered a preliminary injunction against enforcement of the new Virginia abortion statute, on the same day it took effect, according to this AP report, which is worth considering at some length.

The story says that the lawyers from the Attorney General's office filed a motion to have the case reassigned, after it went to Judge Robert Payne because plaintiffs had indicated that he presided over a similar case. On reassignment, the case went to Judge Williams, who was not convinced that the Commonwealth needed the amount of time requested to prepare for trial. The article quoted Judge Williams as saying ""I don't know why you need 120 days for a no-brain case such as this," but he proceeded to set the hearing date for November 4.

One vulnerability of the new law, as pointed out in the article, is that it "does not include an exception to protect the mother's health," which may be a requirement under case law from the U.S. Supreme Court.

The article notes that one of the lawyers arguing for the Commonwealth as a "special assistant attorney general" was Ed McNelis, who was in my class at law school, where he headed up a band called the Wailing Cats.

Former East Tennessean pleads guilty to using spam to defraud by offering bogus investments

The Kingsport Times-News has this story on a former Johnson City man who sent out 9 million spam e-mails touting high-yield securities and managed to defraud those who responded of more than $100,000. The defendant is scheduled to be sentenced in the U.S. District Court for the Eastern District of Tennessee in October.

SW VA towns plan Virginia Heritage Music Trail

This article in the Kingsport Times-News reports on the plans of Southwest Virginia towns to create a "Virginia Heritage Music Trail," to capitalize on tourism related to the musical roots of Southwest Virginia.

No coverage by estoppel under ERISA or COBRA

In Weeks v. Western Auto Supply Co., Inc., Judge Wilson granted the employer's motion for summary judgment, concluding that even though the plaintiff's decedent was sick and not reading his mail, and plaintiff's wife claimed she was misled about the termination of the husband's health insurance, the employer had given proper notice of the employee's rights and the employee had no health insurance.

Student loan company drops suit over defendant's website critical of the company

The Richmond Times-Dispatch has this report on the voluntary dismissal of a lawsuit between "Sallie Mae" the student loan company and a Virginia man over his website which contained statements highly critical of SLM Corp. The man is also suing SLM in connection with his student loan for tuition to a computer school that went out of business.

Virginia State Bar suspends license of Roanoke lawyer

The Roanoke Times reports here that the Virginia State Bar has suspended the license of a Roanoke lawyer because "failed to communicate with his clients, often neglecting to file court papers at their request and sometimes keeping payment for services he provided late or not at all," and, among other things, kept practicing after he was suspended and lied to a judge about his status with the bar.

Virginia Republicans to boycott business ratings?

This article in the Danville paper highlights the odd points of the conflict between Virginia's Republican legislators and the Virginia FREE group, which purports to rate legislators on how friendly they are to business.

The problem is that their disagreements on matters that may or may not have much to do with business led to lower than expected ratings for some Virginia Republicans, much to their embarrassment, since they think of themselves as the party for business.

Tobacco production reduced to 1874 levels

The Bristol paper claims here that the tobacco quotas set by the federal government have been reduced to levels not seen since U.S. Grant was president of the United States.

Videoconferencing and the criminal justice system

This article describes the various applications of the Delaware court system's video conferencing technology, including the impact of broadband connections.

The location of large state and federal prisons, and now regional jails, in Southwest Virginia suggests the prospect for similar uses here - not only for court appearances, but also for conferences between attorney and client.

Legal Times reports on smooth sailing for Fourth Circuit nominee Allyson Duncan

Legal Times has this report on the easy path to confirmation for North Carolina attorney Allyson Duncan, who has been nominated by President Bush to serve on the U.S. Court of Appeals for the Fourth Circuit.

Big East's big damages theory

According to this AP report, "Less than an hour after Miami officially accepted an invitation to join the ACC, Connecticut Attorney General Richard Blumenthal said Big East schools would seek to recover not only losses in ticket sales and broadcasting fees, but also the cash value of diminished recruiting power and scarred relationships with donors."

That sounds to me like a bunch of nonsense. I'd guess that some federal judges might throw out as unproven and unreliable any expert testimony purporting to calculate those damages - but maybe Daubert is not the law in Connecticut. The damages are not going to be measurable in any real sense for years to come, unless the BCS or some television network pulls the plug on the Big East, and if that happens, the BCS ought to be the defendant, not the ACC.

Update - looking again at the Complaint, always a good idea, it appears that Counts 1-4 are only against Miami (now that BC is out), and the other remaining defendant is the Atlantic Coast Conference itself, not any state agencies. The Complaint does not say what kind of an entity the ACC is, whether it exists separately from its members, so I don't know whether the plaintiffs' claims present any immunity issues, which takes me back to wondering whether the case should be removed to federal court.

Mental health services agency challenges release of state agency investigative report

According to this report from the AP, a mental health services agency in Danville is claiming that it would be irreparably harmed by the release of an investigative report compiled by the Virginia Office for Protection and Advocacy.

Interestingly, the article notes that the case is now pending in the U.S. District Court for the W.D. Va. in Danville, having been removed from Danville Circuit Court. I guess there are federal constitutional claims on which federal jurisdiction could be based. But why would the Commonwealth remove the case to federal court? I thought the usual tactic was to seek a transfer to the Circuit Court for the City of Richmond.

Also, the article notes that the VOPA has refused to produce the document pursuant to a request under the Freedom of Information Act, which makes me wonder why the Danville agency thinks that public disclosure is about to happen.

One issue I would suspect will be raised is whether a city agency has any authority to sue the Commonwealth. That was a topic a couple of years ago in the Bristol fiber case, and Judge Jones concluded in this opinion that the city could raise Supremacy clause issues against the state. Specifically, Judge Jones wrote: "In support of their motion to dismiss, Attorney General Earley and the Commonwealth contend that the City lacks standing to bring suit under federal and state law. It is true that some courts have held that political subdivisions of a state, such as cities, lack standing to challenge a state statute on constitutional grounds. See, e.g., Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1363 (9th Cir. 1998). The theory behind such a rule is that a state’s political subdivisions are “so thoroughly controlled by the body they are suing that the litigation amounts to a suit by the state against itself, [therefore lacking] live adversariness . . . .” Rogers v. Brockette, 588 F.2d 1057, 1065 (5th Cir. 1979). However, the majority of courts have rejected this rule, particularly in Supremacy Clause challenges. See, e.g., Branson School Dist. RE-82 v. Romer, 161 F.3d 619, 628 (10th Cir. 1998) (“[W]e conclude that a political subdivision has standing to bring a constitutional claim against its creating state when the substance of its claim relies on the Supremacy Clause and a putatively controlling federal law.”). Where a political subdivision is “legally and practically independent” from the state, the suit presents a genuine adversary contest. Rogers, 588 F.2d at 1065. Moreover, without deciding the issue, the Fourth Circuit has expressed doubts as to the validity of any such rule banning suits by cities against states. See City of Charleston v. Public Serv. Comm’n of W. Va., 57 F.3d 385, 390 (4th Cir. 1995). By virtue of Virginia’s broad grant of powers to localities, discussed below, I find that the City is sufficiently independent from state government to assert a Supremacy Clause challenge against it."

Another challenge to mountaintop mining in the works

This AP story reports that environmentalists are challenging the issues of a mining permit in Mingo County, West Virginia through the state courts of West Virginia, on the somewhat remarkable theory, perhaps, that the West Virginia courts will be friendlier to their arguments than has been the Fourth Circuit.

Rush Limbaugh cites Virginia sodomy law

The all-knowing, all-seeing Maja-Rushie notes in this post to his website that "when the Constitution was ratified, the 13 original states had anti-sodomy laws. In Virginia, sodomy was punishable by death at the time of the founding."

I have no idea whether this is true, but Rush never lets the facts get in the way of a good story, or even a bad one. This source suggests the history is somewhat different, as it argues that colonial Virginia "apparently did not recognize sodomy as a crime except for less than a decade, and then as a military regulation," and submits that Virginia adopted its first sodomy law in 1792 (which did make sodomy a felony, punishable by death like other felonies).

Tim Sandefur has more here on Thomas Jefferson's attempt in the 1770s to reduce the punishment in Virginia for sodomy from death to castration.

On Virginia's new abortion law

The Washington Post has this article on Virginia's new "infanticide" statute, which attempts to regulate partial-birth abortion, and which goes into effect with most other new Virginia laws on Tuesday.

The new statute is already the subject of a federal lawsuit, on which Attorney General Kilgore had this statement.

Fourth Circuit remands salting case for more reasoning (or seasoning) from NLRB

In NLRB v. Forsyth Electrical Co., Inc., the Fourth Circuit in a per curiam decision for Judges Widener and Luttig remanded the case to give the NLRB a chance to elaborate further on the reasoning underlying its decision that the employer had unlawfully discriminated against three union "salts" by failure to reinstate them despite their unconditional offer to come back to work. Judge Niemeyer in dissent noted briefly his view that the proper disposition of the case was simply to deny the NLRB's petition for enforcement and put an end to the case without further proceedings.

More on Swisher

Today's Richmond Times-Dispatch has two articles on the pending execution of Bobby Wayne Swisher, this one on the plans of the victim's mother to watch him die, and this one on his lawyers' efforts to get him resentenced.

Hurricanes accept offer to join ACC

The Daily Press has this report which says that the University of Miami has agreed to accept the offer to join the ACC and leave the Big East.

Attorney general and defense lawyers disagree on effect of a governor's pardon

As reported here by the AP, Attorney General Jerry Kilgore disagrees with lawyers for death row inmate Bobby Wayne Swisher on the issue of whether Governor Warner could issue a pardon of Swisher in such a way that he could be reindicted and retried.

The article notes that "[t]he deans of two Virginia law schools and 19 Virginia legislators have urged Warner to stop the scheduled execution."

More on sodomy in Virginia

The Washington Post has this article on the reaction of activists and legislators in Virginia to the Supreme Court's decision in the Lawrence case, striking down the sodomy law in Texas.

The article includes some predictably provocative quotes attributed to Delegate Robert Marshall:

"'The apocalypse for society is contained in this decision," Marshall said. He called the ruling 'cultural suicide' and said the justices involved wear the 'black robes of death.'
'The most fundamental unit of society is the family -- husband, wife, children -- and when you attempt to parody that and make some new structure or some alternate structure, you cannot contain it; you have to have gay recognition,' Marshall said.
Nevertheless, Marshall pledged to fight that outcome by opposing any furthering of gay rights in Virginia."

On coalbed methane royalties in Virginia

The Roanoke Times has this story on the coalbed methane case out of Buchanan County, in which Judge Keary Williams ruled, in essence, that the title to the methane did not pass with the title to the coal when coal mining rights were conveyed, and therefore the property owners and not the coal companies were entitled to the proceeds from the sale of the methane that was in the coal. The case is now on appeal to the Virginia Supreme Court - the questions presented are shown here.

Since the judge's ruling, the lawyers who represented the property owners have placed notices in the Buchanan County newspaper, seeking out additional property owners who may have coalbed methane rights.

The issue is an important one, I suppose, because it affects not only millions of dollars as royalties for the gas already produced, but also the economics of future production of coalbed methane.

The funniest thing I heard at the judicial conference

The program on Friday morning at the Fourth Circuit judicial conference included a panel of law school deans: Deans Taylor Reveley of William & Mary, Gene Nichol of North Carolina, Kurt Schmoke of Howard, Mark Grady of George Mason, and Karen Rothenberg of Maryland.

One of the bolder ideas advanced in the discussion was a suggestion by Dean Schmoke that maybe law school should be a two-year program, with the third year something like working for pay. A woman in the audience suggested that in medical school, the student-residents are treated like slaves. Dean Schmoke, a distinguished African-American who served for many years as mayor of the City of Baltimore and now leads the law school of the university created after the Civil War to serve freedmen, replied, "Now, don't go telling people that the Dean of the Howard Law School is proposing slavery."

Del. Howell to ACC & Big East - a pox on all their houses

This article in the Raleigh newspaper notes the disgust of some government and university officials over the ACC expansion mess, and offers this quote from William Howell, the Speaker of the House of Delegates, who said it shows "how corrupt and greedy college football has become. I say, 'a pox on all their houses.' I'm going to go watch high school football."

Sabato says Edwards vulnerable for ties to trial lawyers

This Bloomberg news article on Senator and presidential candidate John Edwards' failure to participate in the debate over asbestos litigation reform includes the following from U.Va. government professor Larry Sabato:

"Edwards 'is very, very vulnerable to a charge of being in hock to a powerful and wealthy group of individuals, the trial lawyers,' said Larry Sabato, a University of Virginia political scientist. The senator can't 'work against their interests, given the money they have given him' and if he 'works for them, then he opens himself up to even more criticism,' Sabato said."

Two from Fourth Circuit on White House short list for Supreme Court

Here is another story that says Judges Luttig and Wilkinson of the Fourth Circuit are on the short list of candidates to be nominated to the U.S. Supreme Court, if and when there are any vacancies.

Barbecue - ambrosia in Bluff City

When I was in college, my roommate was from Kansas City, and after listening to his talk of barbecue for years, I went out there and ate at Arthur Bryant's and Gates. We also ate a place called Stroud's, a great place, which displayed a map of the "best food in America." The best barbecue, according to that map, was in Bluff City, Tennessee, at the Ridgewood, the subject of this column from the Kingsport Times-News.

Even my man Sam from Kansas City concedes that the Ridgewood is good. Maybe I ought to go there next week and buy a jar of sauce to send to him in London, where he has been in barbecue exile these past several years.

Lately, though, my favorite BBQ place has been PQ's on the Midlothian Turnpike, I eat there every time I go to Richmond, which seems to be more often than I get down to Bluff City.

On the new Virginia laws protecting against identity theft

The Bristol Herald-Courier has this report on the laws taking effect in Virginia July 1 which protect against identity theft, and other laws regarding security and privacy.

Attorney General Jerry Kilgore had this press release from June 27 regarding the same public safety statutes, titled "Jerry Kilgore’s Agenda Set to Become Law."

The great escape on a little pink bike

CrimLaw has this post with a link to this article in the Daily Progress, which merits quoting at length:

"A cornered police fugitive tried to escape on a child’s pink bicycle he stole Wednesday from a yard in Charlottesville, authorities said.
'It was probably the smallest getaway vehicle I’ve seen in my 25 years,' said Lt. Gary Pleasants of the city police.
. . .

A few minutes later, the officer spotted the man in a yard on Park Lane West, off Jefferson Park Avenue.
Pleasants said the man snatched a tiny pink bike, mounted it and began pedaling.
With wheels only 8 inches in diameter, the bike didn’t make it far. The man went about 30 feet before police caught up with him.
'It was very comical looking,” the lieutenant said. 'Officer Mark Frazier, who could run faster than the bicycle could go, tackled him and knocked him off the bike.'
'I’ve seen some strange things,” he added, “but that was one of the better escape attempts I’ve seen.'"

Birth-related Neurological Compensation Act leaves parents of short-lived infant with no rememdy

This Daily Press story describes the circumstances in which the Birth-related Neurological Compensation Act was applied to leave the parents of a child who lived only a short time after birth with no remedy for their claim of malpractice against the obstetrician.

Verizon sues Nextel claiming corporate espionage

Two of Virginia's telecom titans, Verizon and Nextel, have joined battle on a new front, as Verizon Wireless sued Nextel on Friday in the U.S. District Court for the Eastern District of Virginia, claiming that Nextel engaged in corporate espionage and other bad acts to get at Verizon's wireless technology, as reported here in this AP reports, which also notes that "[s]hares in Verizon fell 47 cents to $39.66 each in trading Friday on the New York Stock Exchange," while "Nextel shares rose 33 cents to $18.49 each on the Nasdaq Stock Market."

The effects of the Georgia redistricting case on redistricting in Virginia

Following the Supreme Court's decision on Thursday in the case of Georgia v. Ashcroft, which dealt with changes in the shape of state senate districts in another state like Virginia covered by the federal Voting Rights Act, the litigants challenging the make-up of the 4th congressional district in Southeastern Virginia are claiming their prospects for success in the case are improved, as reported here in the Richmond Times-Dispatch and here by the Daily Press.

Sneaking Suspicions has this interesting post and Election Law has this detailed post on the Georgia case.

The effects of the Texas sodomy case on Virginia law

In 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.

On the Microsoft preliminary injunction case

In Sun Microsystems, Inc. v. Microsoft Corp., the Fourth Circuit in an opinion by Judge Niemeyer joined by Judges Widener and Gregory affirmed in part and reversed in part the preliminary injunctive relief ordered in December 2002 by Judge Motz on the anti-trust and copyright claims concerning Microsoft's use of Sun's Java technology.

The market implications of this decision have been described elsewhere, but what is interesting to me is that the Court continues to apply the old Blackwelder test for preliminary injunctions, as noted in footnote 4, which says:

"Although this circuit’s emphasis on the balance of the hardships has been criticized as inconsistent with Supreme Court precedent "by over-valuing the inquiry into the relative equities of granting and denying a requested injunction to an extent that essentially denies any value whatsoever to the inquiry into the likelihood of success on the merits," see Safety-Kleen, 274 F.3d at 868 (Luttig, J., concurring), we remain bound by the test as it has been consistently articulated and applied by prior appeals. . . ."

A judge who has seen this blog once asked me about this concurring opinion by Judge Luttig. Among other things, Judge Luttig wrote: "In actual practice, even though not in formal doctrine, we have virtually without exception insisted upon a showing by the plaintiff of the likelihood of success on the merits of his claim before we have either entered an injunction in the trial court or affirmed the trial court's entry of an injunction on appeal--and we have required this showing not merely at the threshold but also regardless of whether the balance of harms decidedly favored the plaintiff. Relatedly, we have all but abandoned the instruction that the balancing of harms is the preeminent of the injunction inquiries. And for their part, and to their credit, litigants have not dared to argue their causes even principally, much less alone, on the strength of the equities at stake, whatever they were." Safety-Kleen, Inc. (Pinewood) v. Wyche, 274 F.3d 846, 871 (4th Cir. 2001) (Luttig, J., concurring). I suppose the judge was telling that me that he thought I was trying (in opposing a motion for preliminary injunction) to do what Judge Luttig was crediting other litigants for not doing (daring to argue that the balance of harms alone was sufficient reason to deny the motion).

Fourth Circuit rejects liability theories in toxic shock syndrome case

In Murphy v. Playtex Family Products Corp., the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins and Judges Wilkinson and Motz rejected plaintiff's liability theories against a tampon manufacturer, concluding, among other things, that federal law preempted any claim based on faulty labeling.

Fourth Circuit strikes punitive damages in Title VII case

In Bryant v. Aiken Regional Medical Centers, Inc., the Fourth Circuit in an opinion by Judge Wilkinson, joined by Judges Niemeyer and King, struck the award of punitive damages in the plaintiff's Title VII retaliation and racial discrimination claims, while affirming the verdict on liability and compensatory damages.

On compensatory damages, the defendant argued, consistent with the Price v. City of Charlotte case, that the award of $50,000 for plaintiff's uncorroborated emotional distress claim was excessive. This leads me to conclude mainly that the judges did not think that $50,000 was very much money under the circumstances of the case. I think that the Price v. City of Charlotte opinion has to be part of the defendant's Rule 50 motion during and after trial in every case where the plaintiff does not present expert medical testimony in support of his or her emotional distress claim, particularly if the jury awards more than $25,000 (but maybe now the bar has been raised somewhat).

On punitive damages, the Court applied the Supreme Court's Kolstad case. Brian Peterson has this excellent post outlining the relevant factors of the Court's punitive damages analysis.

U.S. Supreme Court grants cert in W.D. Va. privacy case involving social security numbers

SCOTUSblog has this post with a link to this article in Washington Post about the U.S. Supreme Court's decision to grant certiorari in Doe v. Chao, a case arising out of the Western District of Virginia. The issue is whether the use of Social Security numbers by the Department of Labor on the files of Black Lung claimants violates their rights under the federal Privacy Act, which regulates the use by government of Social Security numbers.

The case was brought by Norton attorney Joe Wolfe, with the aid of Jerry Kilgore, before he became Attorney General, and who argued the case unsuccessfuly before the Fourth Circuit, which issued this opinion written by Judge Karen Williams, who was joined by Judge Luttig, with Judge Michael dissenting.

I understand that one of usual suspects among the firms in D.C. who handle Supreme Court cases is associated with Joe Wolfe for the Supreme Court appeal. Joe told me about cert. order a couple of days ago, and of course he was delighted.

The issue in the case mainly has to do with the meaning of "actual damages" under the Privacy Act, since proving damages was apparently a problem for all but one of the plaintiffs in the district court, and on appeal the Fourth Circuit ruled out the claim of the one who prevailed before Judge (Glen) Williams in the district court.

The term "actual damages" appears in something like 62 different sections of the Virginia Code, so I have written a couple of briefs about the meaning of those words, particularly as they appear in Va Code § 65.2-308, the statute that provides a remedy for employees who are discharged for filing a claim for workers' compensation.

Easy judiciary conference hearing for Fourth Circuit nominee Allyson Duncan

I see that How Appealing has this post with a link to this story in the Raleigh newspaper about how Fourth Circuit nominee Allyson Duncan enjoyed a stress-free hearing before the Senate Judiciary Committee earlier this week. The Richmond Times-Dispatch had this report on the hearing.

Who will watch the Fourth Circuit judicial conference on C-SPAN?

Having just come from there, I can tell you that the C-SPAN replay of this morning's session of the Fourth Circuit judicial conference will include the following:

Chief Justice Rehnquist, in his role as circuit justice, delivered his annual summary of the just-ended term's dark horse (or should I say dark flower?) decisions, including Illinois ex rel. Madigan v. Telemarketing Associates, Kentucky Ass'n of Health Plans v. Miller, Desert Palace v. Costa, Howsam v. Dean Witter, and Franchise Tax Board v. Hyatt. Of the Kentucky HMO case, the Chief Justice said something like ERISA was passed in 1974, and the Court has taken a couple of ERISA cases every year ever since, and all of them "are dreary."

The panel of analysts, moderated by Professor A.E. "Dick" Howard, included a presentation by Professor Susan Low Bloch of Georgetown on the affirmative action and privacy cases (or the "diversity and perversity" cases, as she called them), another by Dean John Jeffries from U.Va. on the term's First Amendment cases, another by Professor Akhil Amar from Yale on the term's criminal procedure cases, and another by Professor John McGinnis from Northwestern on the term's federalism cases.

UPDATE - As noted on How Appealing, the AP has this report on the Chief Justice's remarks this morning at the judicial conference.

On to Hot Springs

Yes, I'm off to the Fourth Circuit Judicial Conference at the Homestead, and no, I won't be blogging from there.

I'm just hoping to find the place, never having been there before.

Back in a couple of days.

U.S. Supreme Court takes on ADA suit re: accessibility of TN courthouses

This Reuters report indicates that the Supreme Court granted certiorari on Monday in a Tennessee case brought by two paraplegics who sued Tennessee claiming that county courthouses did not comply with the accessibility requirements for public facilities under the Americans with Disabilities Act.

Worldcom judgment against employee for unearned retention bonus affirmed

In Worldcom, Inc. v. Boyle, the Fourth Circuit in a per curiam for the panel of Judges Wilkinson, Niemeyer, and Traxler, upheld the judgment for the plaintiff on its claim for restitution of the retention bonus of $900,000 paid to a former employee, who had breached his promise to stay with the company for two years.

Applying Virginia law, the Court rejected the employee defendant's various arguments that the plaintiff's claim was barred by the doctrine of unclean hands, and affirmed the dismissal of his counterclaims, which included a claim of conversion for the employer's decision to freeze his stock options after he left the company.

No sticker leads to police stop, search of car, search of passengers, finding of gun, finding of cocaine

In Slayton v. Commonwealth, the Virginia Court of Appeals in an opinion by Judge Kelsey joined by Judge Felton and Senior Judge Willis affirmed the denial of a motion to suppress, where the defendant's vehicle was pulled over for no county decal, then the policeman spotted bullets in the car and was given permission to search, then the officer noticed the passenger appeared to have a gun, then found the gun, then found the cocaine incident to the arrest for the gun.

When I was in law school, my car was registered in the Town of Abingdon, which used tags instead of window decals, with the result that I got a lot of tickets in Williamsburg and was sometimes pulled over in Virginia Beach for not having a sticker, even though none was required.

Hearing officer in state employee case can reduce discipline for misconduct

In Tatum v. Va. Dept. of Agriculture and Consumer Services, the Virginia Court of Appeals in an opinion by Senior Judge Coleman joined by Judges Benton and Annunziate dealt with a state employee grievance case, where the hearing officer found the employee guilty of misconduct but reduced the punishment, and the Circuit Court held that the hearing officer had no authority to change the punishment for the misconduct. The Court concluded that the hearing officer is "is expressly authorized to reduce the discipline if the officer finds that the level or severity of discipline for the misconduct was too severe," and had acted within his authority under Va. Code 2.2-3005.

Illegal use of foreign hardware nets $250,000 in fines for Virginia contractor

A building contractor in the Tidewater who had received millions of dollars in payments for his work on government contracts entered into a plea agreement regarding his violations of the Buy American Act, a federal law that mandates the use of American-made goods, and will have to pay $250,000 in fines for himself and his company, as reported here in the Virginian-Pilot.

The tax code too tough to tame

The Virginian-Pilot has this report on Virginia businessmen who are skeptical as to whether Governor Warner can deliver on reforming the tax laws of Virginia, figuring that the task is too great and the economy too poor for quick results to be possible.

Matrix killer in Fairfax County pleads guilty to murdering parents

The AP reports here and the Washington Post reports here that the teenager who according to his counsel was caught in the movie "The Matrix" has entered a guilty plea to the charges that he murdered his parents in Fairfax County.

Nothing like a scheme that involves sending bogus tax refunds to the penitentiary

The Richmond Times-Dispatch has this report on the sentencing of a couple of con men who worked up a new scheme to make money off bogus tax refund claims while they were sitting in prison.

The article explains:

"Authorities said Blankenship and Bobby Richardson, while at Buckingham, obtained the names of 33 inmates and their Social Security account numbers - apparently through a prison class that teaches inmates how to write resumes to use in job applications.

The two got the names and numbers to Lee Richardson of Petersburg, who used them to prepare the bogus returns.

The Internal Revenue Service picked up that the returns all listed the same occupation, correctional officer; reported the same income, $28,000; and asked for the same incorrect refund, $7,454. Had the returns been legitimate, the correct refund would have been $3,109, according to court papers.

Authorities said Blankenship, who has a record of tax fraud and financial misdoing, apparently obtained the IRS code number for correctional officer and was able to make bogus wage statements - W-2 forms - using that information and the convict's names.

Surprisingly, the returns all gave the same address for the tax refunds - Buckingham Correctional Center. Authorities said one refund check was sent as a test; the prison sent it back to the IRS with the explanation that it must be a mistake because the addressee was a prisoner."

Texas-like tactics used to stall vote on rezoning for Wal-Mart outside Front Royal

The lone opponent of rezoning in Front Royal to allow construction of a big new Wal-Mart has been avoiding the meetings so the town council has no quorum, since two of the members are not voting because of conflicts of interest, as reported here in the Richmond Times-Dispatch.

Bluefield-area librarians dismiss the efficacy of porn filters

The Bluefield Daily-Telegraph found skepticism among librarians in the Bluefield area about the merits of the Supreme Court's decision on library funding and whether software filters screen out more of the good than the bad.

The Richmond Times reports here that the State Library of Virginia will have to figure out how to complain with the federal statute to keep its federal funding of several million dollars.

Not quite the coming of Elizabeth Taylor, but still a big deal

In Adriana Trigiani's novel Big Stone Gap, she combines fact and fiction to retell the events of Elizabeth Taylor's infamous visit to Big Stone Gap during the first Senate campaign of her then husband John Warner, a visit cut short when Ms. Taylor nearly choked on a chicken bone. In the novel, a middle-aged Wise County woman looks at the middle-aged Ms. Taylor and says something like, "all my life I wanted to look like her, and now I do." In real life, one witness to these happenings was a lawyer named Brad Cavedo, now a Circuit Court judge in Richmond, whose name is in the acknowledgements section of "Big Stone Gap."

Ms. Trigiani herself will be back in Wise County over the weekend for Drama Days, as reported here in the Coalfield Progress, perhaps after signing a few books, she'll head over to Stringers for some fried chicken.

Unfair competition suit among tattoo artists in Roanoke gets settled

As reported here, two tattoo artists who worked the same corner in Roanoke have settled their grievances about an alleged breach of a covenant not to compete, and one of them is now commuting from California to finish up long-term tattoo projects in Southwest Virginia.

Marketing a knife to cut seatbelts

Ad makers sunk an SUV in the lake at Warrior Path State Park outside Kingsport over and over, making an advertisement for a Smith & Wesson knife that cuts seatbelts, as described in this article in the Kingsport Times-News.

More on Judge Jones' denial of severance in Pocahontas murder trials

The Bristol paper has this story on the ruling by Judge Jones of the W.D. Va. to deny separate trials to the remaining defendants in the Pocahontas murder cases, including the former mayor, Charles Gilmore.

ACC votes to take Virginia Tech and Miami

As reported here by the Washington Post, here by the New York Times, here by USAToday, and here on CNN/SI, the Atlantic Coast Conference presidents have voted to invite Virginia Tech and Miami to join the ACC, leaving Syracuse and Boston College out of their expansion.

In other words, the talk of 9, 10, 12, 13, and 14 teams has given way to an 11-team plan. Talk about making it up as you go along, but this result makes more sense than anything else I've heard. Miami was never made much sense in the Big East, and Tech is more than a logical fit for the ACC. Following the same logic, I wouldn't be surprised if the hype starts to build for adding one more team from elsewhere, specifically South Carolina, which seems like a much more natural rival for the ACC schools than for its current opponents in the SEC.

I would think also that this move will likely pull the rug out from under the lawsuit in Connecticut. In fact, the ACC might consider a counterclaim for unjust enrichment, for if the Big East retains its BCS membership but drops the added cost of trips to Florida, it might yet come out ahead in terms of dollars and cents. Of course, who knows how much longer there will even be a BCS, which is another reason why the ACC presidents had to be questioning themselves at every step.

Dumb and dumber - why not to videotape a kid's molestation of your dog then give the tape to the police

So, there were these two guys, living an "alternative" lifestyle, and they let this underaged kid come over to their house and play with their computer and play with their dogs, and they get the idea to put a camera to watch what the kid is doing because they think he is stealing from them, and it turns out the kid is getting nasty with the dogs, and so the guys decide to videotape what the kid is doing, and eventually they give this tape to the police, and they get arrested for child pornography and other charges for what's on that video, and they lose their jobs, and they wind up pleading to some minor criminal charges, and then they sue everybody, claiming a violation of almost every particular in the Bill of Rights but the Second Amendment, and the district court judge throws out their case, and the Fourth Circuit affirms the dismissal on appeal, in this opinion, Bruette v. Montgomery County. It could almost be a movie, or at least a Twilight Zone episode.

Tobacco vs. tobacco - Fourth Circuit affirms summary judgment on antitrust claims against Philip Morris

In RJ Reynolds Tobacco Co. v. Philip Morris USA, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Widener and Michael and Senior District Judge Richard Williams from the E.D. Va. in Richmond affirmed a North Carolina court's entry of summary judgment for Philip Morris on state and federal law anti-trust claims related to the marketing of cigarettes. Interestingly, David Boies argued for Philip Morris, and on the other side of the case, among others, Boies' old firm, Cravath, Swaine & Moore.

The AP has this report on today's decision.

Supreme Court's Internet filter ruling and the Abingdon library controversy of 1980s

In U.S. v. American Library Ass'n, Inc., the Supreme Court without a majority opinion upheld against a First Amendment challenge the constitutionality of the Children's Internet Protection Act, "which forbids public libraries to receive federal assistance for Internet access unless they install software to block obscene or pornographic images and to prevent minors from accessing material harmful to them."

The Richmond Times-Dispatch has this report, in which all Richmond-area localities claim that they are in compliance with the federal Act, an interesting fact if true.

The case makes me recall that right here in Washington County, more than 20 years ago, there was a great dispute over the books on the shelves in the county library (from which I've had a library card since I was 7). Former Washington County News columnist Lowry Bowman has this account of the library story:

"In March, 1980, three businessmen-two convenience store owners and one the owner of Abingdon's only book store-were arrested on charges of selling pornographic materials, largely such magazines as Playboy, Dude, Hustler, and the like. The Sheriff swore under oath that [the Rev. Tom] Williams originated the complaint, although Williams denies it. It ended in a mistrial when the jury could not agree. During the trial, however, the defense introduced as evidence several popular novels from the county's public library-novels by Sidney Sheldon, Phillip Roth, and others. It argued that the magazines in question were no more pornographic than these novels in popular demand and therefore could not have offended the public morality.

Williams, who sat through the trial, went immediately to the library and demanded from Librarian Kathy Russell White a list of all those who had checked these books out of the library. She refused. The library's Board of Trustees (all appointed by the Board of Supervisors) supported the librarian and condemned any attempt at censorship of library shelves.

The library has a standard procedure to be followed when anyone dislikes its selection of books. There is a complaint form to be filled out and presented to the Board of Trustees. Williams refused the form and went this time directly and immediately 'to the people.' [Supervisor Bobby] Sproles, citing 'egg-headed liberals,' vowed to cut off money for the library unless the books were removed.

But this time there was immediate reaction. Two opposition groups emerged immediately: the 'Friends of the Library' organized under the leadership of Jack Kestner, a retired newspaperman and author of several books for children, and the 'League of County Voters' organized under the chairmanship of Dr. G. A. Larsen, son of a Lutheran missionary.

Larsen called for reason instead of 'paranoia.' He said of Williams and Sproles: 'Despite their proclaimed religiosity they have proven themselves to be false prophets. The people now in power have accomplished a great deal by using methods that I find reprehensible.'

. . .

The public library case has attracted national attention. All three major television networks, city newspapers, and many free-lance writers have descended on a bewildered little Abingdon. Hollywood actor Ned Beatty, who started in Abingdon's Barter Theater and sang in the choir at St. Thomas Episcopal Church, came back to investigate the possibility of making a documentary movie on the subject. Williams has appeared on national TV talk shows - one a debate with author Sidney Sheldon that produced much beat and little light.

The tumult played a major role in Abingdon's municipal elections of May 4, 1982. Spokesmen for three incumbent town council members charged that spokesmen for three challengers were allied with Sproles and Williams. That charge resulted in a $1.7 million libel suit-yet to be tried.

It apparently helped re-elect the three incumbents who promptly began studying a plan to annex the suburbs surrounding Abingdon to raise the town's population above 5,000. Under Virginia law, a town with more than 5,000 population may declare itself a city and literally secede from the county in which it is located, taking its tax base with it. If successful, the move would cost the county government much of its tax revenue.

With a solid majority on the Board of Supervisors, Sproles hit back by hitting the library, the school board, and the sheriffs department where it hurts the most-in the pocketbook. He cut the school budget by $900,000 to eliminate a promised ten per cent pay raise for teachers. He cut the sheriffs budget by $109,000, and the sheriff said he may be forced to sue the county. (Earlier, Sproles called for creation of a 'county police force' under control of the Board of Supervisors.)

Sproles and his majority cut the library's 1982-83 fiscal budget $16,000 below its 1981-82 funding level. State Library officials said this will automatically cost the library $50,000 in state aid, all of which is earmarked for purchase of books and similar library materials. The immediate effect of the budget cut is that the library has had to curtail its hours of operation drastically."

I remember this story in part because the librarian had once been one of my babysitters when I was a wee lad, and I think her mother was the elementary school librarian at the place where I first went to school.

I'm not sure that I put the debate over Internet filters on the same level as that wild library episode in the bad old days of Washington County politics, but I guess some librarians see no difference in the federal government's threat to cut off money to libraries without some limited censorship of the Internet.

More on Virginia schools' reactions to Michigan cases

The Roanoke Times has this article, which says that nobody knows what yesterday's Supreme Court's decisions on race in admissions mean for the public schools and universities in Virginia. The Daily Press reports here that it is "too early" to know the impact of the Michigan cases.

The Richmond Times-Dispatch has this article, which suggests all Virginia schools are already in compliance with yesterday's Supreme Court decisions. The Daily Progess in Charlottesville reports here that "UVa likely unaffected by affirmative action ruling." Similarly, the Virginian-Pilot reports here that no changes were likely to result from the Court's decisions.

Attorney General Kilgore's news release on the Michigan cases is here. In it, he says that his advice has been that "the easiest course of action is to remove race or gender from consideration at all" and nothing the Supreme Court said changes that stance. Governor Warner's press release is here. In it, he said "I believe race should continue to be considered as one factor among many."

The Times-Dispatch also has this item on how the balancing act of Richmond's own, the late Justice Lewis Powell, still influenced the Court in yesterday's rulings.

First court appearance on Thursday in Big East lawsuit, as Miami-only concept gets some ink

As reported here by the AP, the first pre-trial conference will be held somewhere in Connecticut on Thursday in the lawsuit brought by the Big East to stop the departure of Miami and Boston College to the Atlantic Coast conference, amid talk that some Big East members that the suit might be dropped if the ACC takes only Miami, which might be the plan preferred by North Carolina, as reported here. The New York Times expects the ACC to vote finally on Tuesday, going for either the Miami-only plan or the 12-team plan, with or without Virginia Tech, as reported here.

Virginia Supreme Court goes 0-for-2 before U.S. Supreme Court this term

This report in the Washington Times discusses the fact that two decisions by the Virginia Supreme Court - both involving First Amendment issues, the public housing trespass case and the cross-burning case - were reversed in this term of the United States Supreme Court. Since 1995. Virginia is "tied with Washington for the most reversals in direct appeals of top state court rulings," but as Professor Rod Smolla and former Attorney General William Broaddus explained in the article, that doesn't mean much of anything.

Outhouses in America

That's right, this article is about Great American outhouses, including the ones at Monticello, home of Thomas Jefferson, where "archaeologists recently discovered a 30-foot tunnel that used to ventilate his outhouse."

The outhouses were still there (but not in use) when I was old enough to look around at the farms where my grandparents lived. One was known as my grandpa Conrad's "office."

Unfortunately, there are too many outhouses still in use by necessity in Southwest Virginia - Lenowisco is bringing water, sewer, and fiber-optic cable to some places all at the same time.

AG Kilgore declares Supreme Court rulings on race will not alter his advice to Virginia schools

As reported here by the Daily Press, Virginia Attorney General Jerry Kilgore said earlier today that the Supreme Court's split decisions in the University of Michigan cases would not change his advice to Virginia's public colleges and universities as his offices continues to examine their policies regarding race.

Supreme Court grants certiorari in municipal telecom case from Missouri

As reported here by the AP, today the Supreme Court granted cert in the Missouri Municipals case, in which the Eighth Circuit joined Judge Jones of the W.D. Va., in this opinion, and others, in the conclusion that local governments are within the phrase "any entity" against which states may not under the Telecommunications Act provide barriers to entry into the business of providing telecommunications. The D.C. Circuit took a different view in an earlier case. Jim Baller is one of the counsel for the local government side.

In Southwest Virginia, the City of Bristol, the Town of Abingdon, Dickenson County, and Lenowisco Planning District Commission are among the local government bodies that are providing, have provided, or will provide telecommunications services. Other communities like Bedford, Manassas, Lynchburg, and Blacksburg have fiber networks that involved some combination of public and private efforts.

Utility customer has no procedural due process claim where service not mandatory and not yet cut off

In Southside Trust v. Town of Fuquay-Varina, the Fourth Circuit in a per curiam opinion for the panel of Judges Williams and Michael and District Judge Wooten affirmed summary judgment on a utility customer's procedural due process challenge to the municipal utility's actions in charging higher rates. The Court held that plaintiff was not entitled to any procedural due process, because the town was not required to show "cause" to deny service under state law, and that there could be no denial of procedural due process where the plaintiff's service had not been terminated.

Even a sick old man not entitled to downward departure from guidelines

In U.S. v. Hayes, the Fourth Circuit in a per curiam opinion for the panel of Judges Michael, Motz, and Traxler affirmed the defendants' sentences, even as to one defendant in particular who claimed the following:

"Greeson was 82 years old when he was sentenced. Two months earlier, in May 2002, he had a cancerous tumor removed from his colon. A letter to the probation officer from his doctor stated that he suffered from chronic obstructive pulmonary disease, degenerative disc disease, and diabetes which was controlled by diet. The district court was plainly troubled about Greeson’s age and health and mentioned the reversal of the downward departure in Coble, adding, 'I don’t find any separation between this case and Mr. Coble’s case. If I could, I would, but I simply can’t find any, and I think that I’m bound to follow what the Court has said.' After Greeson further alleged that he suffered from skin cancer on his head and arms, had been treated by surgery for glaucoma on his left eye, and needed the same surgery on his right eye, the court stated, 'This is a very, very difficult case. . . . I think that judges ought to have some grounds, and if I had any, I would depart downward. I don’t see any basis to do that here.' Greeson argues that the district court mistakenly believed that it was bound by the outcome in Coble and thus without authority to depart downward."

Of this argument, the appeals court said:

"We note that the sentencing court’s authority to depart based on any factor that is not forbidden is well established. The policy statements that deal with age and physical condition as potential factors for departure each state that these factors are 'not ordinarily relevant in determining whether a sentence should be outside the applicable guideline range,' thus leaving open the possibility that a departure may be warranted in an unusual case. USSG §§ 5H1.1, p.s. (Age), 5H1.4, p.s. (Physical Condition). These factors are 'discouraged' bases for departure, but may be the basis of a departure in an exceptional case. United States v. Rybicki, 96 F.3d 754, 758 (4th Cir. 1996). Because the law is settled in this area, we interpret the court’s comments in this case to mean that the court was unable to find that Greeson’s case was an exceptional one which justified departure. We cannot conclude from the court’s statement that it would prefer a wider latitude to depart that it mistakenly believed it lacked authority to depart. Therefore, we conclude that the court understood its authority to depart and exercised its discretion not to depart."

Mr. Greeson was sentenced to 46 months in prison.

Is there a bankruptcy stay when petition is invalid and does stay continue when case is dismissed then converted?

In Shaw v. Ehrlich, involving the claims between former members of the Audubon Quarter, which was once an artist-in-residence group at Virginia Tech, Judge Turk of the W.D. Va. wrestled with the thorny questions under bankruptcy law of whether there is an automatic stay when the bankruptcy petition is invalid (answering yes), and secondly, whether the stay was continued when the case was dismissed then converted to Chapter 11.