No jurisdiction for class attack on property tax in Georgia

In Amos v. Glynn County Board of Tax Assessors, the Eleventh Circuit held that the Tax Injunction Act, 28 U.S.C. § 1341, deprived the District Court of subject-matter jurisdiction, in a case where the plaintiffs sought class relief against the way the County assessed real property taxes. The appeals court concluded that state law affords the plaintiffs "a ‘plain, speedy and efficient remedy.’”

I've wondered whether the Tax Injunction Act would have some effect on litigation over the landfill fee in Wise County, but then a landfill fee might not be considered a tax for the purposes of that Act - besides which, I'm not sure whether there is a "plain, speedy, and efficient" remedy for trying to recover fees that were collected illegally.

Some members of black alumni group call for reprimand of Coach Beamer

Some members of the Virginia Tech Black Alumni Network want football coach Frank Beamer to be reprimanded for slapping Ernest Wilford on the helmet during the Hokies' terrible defeat at the hands of the West Virginia Mountaineers, according to this report in the Roanoke paper, which says, among other things:

"But on Friday, several members of Tech's Black Alumni Network sent a letter to university President Charles Steger urging the administration to hold Beamer "to the same standard as any other university official."

"We cannot imagine that the university administration would remain silent if a professor struck a student in the classroom," said the letter from the group's ad hoc committee. "And the university should not remain silent when a coach assaults a player during a school-sanctioned sporting event."

Tech spokesman Larry Hincker, however, objected to the group's characterization of the slap as assault and called it "atrocious" to compare a football field and a classroom.

"We just don't think it's analogous to a classroom," said Hincker, adding that Wilford was covered in protective equipment. "Our position as of yesterday was that it was not an actionable offense, and I don't think that has changed today."

I'm not sure how many people who are not Tech alumni could name a single Tech employee other than Frank Beamer, who has probably brought more favorable publicity to the school than anyone else, ever, and is a good guy besides, and everyone with a clue at Virginia Tech knows both to be true.

Death sentence more likely to be executed in Virginia

According to this article in the Richmond paper, persons sentenced to death in Virginia are more likely to be put to death.

The article notes the following:

"From 1977 through 2001, some 136 prisoners were sent to the state's death row. As of the end of 2001, 83 of them - 61 percent - had been put to death. Since then, six more have been executed, and at least five more sent to death row.

There is no close second. Missouri executed 32 percent, and Texas and Delaware each executed 28 percent of their death-row inmates during the same period, according to an analysis of data from the U.S. Bureau of Justice Statistics.

Virginia has executed such a large percentage of its condemned inmates that its death row population went from more than 60 inmates to 27. It now has one of the smallest death rows in the country, and its inmates have been on death row an average of 2.8 years - the shortest stay of any state."

Western Virginia losing some seniority in the legislature

This article from the Richmond paper explains how Western Virginia will be losing some seniority in the General Assembly, with the retirement of three long-serving Roanoke area legislators.

The state of affirmative action at U.Va. law school

The Washington Post published this letter to the editor, from a third-year law student, about the state of affirmative action at the law school of the University of Virginia.

Another Democratic candidate for Attorney General?

Via Lawyers Weekly, this story in the Washington Post says that Del. Brian Moran from Alexandria has a hankering to run for Attorney General. According to Martindale, Brian Moran is with a two-man firm in Alexandria, and graduated in 1988 from the law school at Catholic University in D.C.

Briefs online in the Missouri municipal telecom case

At this site can be found the briefs for the Missouri municipal telecom case, including three - this one, this one, and this one - that I wrote.

How Muhammad screwed up his case in two days without a lawyer

This article from the Scripps Howard service points out how John Muhammad has probably botched his own case by acting as his own lawyer for a couple of days while the Commonwealth was putting on its evidence - mostly in that he was unable to make an effective cross-examination of the many witnesses the Commonwealth presented during that time.

Mild repercussions from Hokie loss in Morgantown

Two articles from the Kingsport paper (registration required):

1. it says here that Tech won't discipline Coach Beamer for swatting Ernest Wilford on the helmet

2. Senator George Allen now owes a West Virginia congresswoman a bag of peanuts for losing their wager on the game, as reported here.

More on the Motorola case

This article and this article have more news and reactions about the Fourth Circuit's ruling in the Newman v. Motorola case, where the plaintiff claimed he got cancer from using his cellphone.

Three stories on the wild, wild, world of telecommunications

From one day's Washington Post:

(1) this article about cable companies providing telephone service over the Internet, which asks: "So is an Internet phone the same as a phone? That's what regulators across the country are bickering over as they struggle to figure out what the emerging technology known as voice over Internet protocol (VoIP) might mean for consumers and the heavily regulated phone industry. Though Internet and traditional phones serve similar purposes, current regulations treat them differently."

(2) this article about rising cable subscriber rates, and how ESPN is fighting back against the accusations that it is responsible

(3) this article which says that Senator Lamar Alexander, of all people, favors an end to the ban on allowing states to tax access to the Internet. Bill Hobbs wants Tennesseans to tell the Senator this is nonsense.

No money for new judgeships?

This article about the recommendation of a new judgeship for Chesapeake by the State Judicial Council includes reference to a statement by Senator Stolle that there will probably be no money for new judgeships again this year.

Settlement in Wallens Ridge prisoner death case

The Roanoke paper reports here on the settlement of the wrongful death case brought by the estate of a Wallens Ridge inmate who allegedly died of injuries he incurred from the guards' use of a stun gun, after which he was allegedly denied timely medical care.

Personal data on the Internet from public sites in Virginia

The discussions of a legislative committee about public access to private information, mainly land records, is described in this article from the Richmond newspaper.

On the AG's pledge not to discriminate against gays

This editorial in the Virginian-Pilot has it exactly right when it says that Attorney General Kilgore should not be criticized for his willingness to declare that he would hire none but the best to work in his office, even if that means a homosexual sneaks onto the government payroll.

The staunchest Democrat I know from over in Lee County sent me this story or something like it, for reasons I have yet to fathom - I'm guessing it is to lampoon what he sees as the nuttiness of "social conservatives."

Fentanyl patches the new drug being abused in Southwest Virginia

As reported here in the Coalfield Progress, the new thing that law enforcement officials in Southwest Virginia are finding is the abuse of pain patches.

Fourth Circuit to decide case about prayer at town council meetings

This article describes a case out of South Carolina now on appeal to the Fourth Circuit, where the issue is the use of references to "God" in the invocation at town council meetings. The article explains that "[p]rayer at public meetings cannot include words that endorse a specific religion, such as 'Christ' or 'Jesus,' a federal judge has told a South Carolina town council."

I went to Clemson, South Carolina, for the U.Va. football game a couple of weeks ago, never having been down there before, and everything about it (other than the final score) was delightful, including the prayer before the game, which among other things invoked God's blessing on "those who play, those who watch, and those who do push-ups in the end zone."

Profile of Judge Glen Conrad, newest judge in W.D. Va.

On Monday, the Roanoke Times published this article on Judge Glen Conrad, who was appointed by President Bush to succeed Judge Turk.

Among other things, the article notes that Judge Turk wanted Judge Conrad to have his seat on the bench, and describes the ties between the two and the late Judge Dalton, all from Radford:

"The ties between Conrad and Turk go back to Radford, where Conrad's mother, Selma Conrad, taught elementary school for decades. She taught several of Turk's children, Turk said. Conrad's father, James Conrad, worked at the post office in Radford. Both have since died.

Conrad first spoke at length with Turk while writing his senior thesis on the Republican Party in Virginia while attending the College of William and Mary. During his time at the university, Conrad also donned a costume to work at Colonial Williamsburg.

After Conrad graduated from law school, Dalton and Turk hired him as a federal probation officer and law clerk.

Soon after, Conrad was named U.S. magistrate in Abingdon. He worked with Allen and Cynthia Kinser, now a Virginia Supreme Court judge. He then moved to Charlottesville, where he met his future wife, Mary Ann. She is prominent in the Republican Party, Turk said."

Funding for Blue Ridge Parkway covers only 60% of costs

This AP article describes the funding shortfalls for the Blue Ridge Parkway, which runs from through Southwest Virginia into North Carolina.

Virginia apartment dwellers banned from grilling on wooden decks and balconies

My wife read this AP story about a new Virginia law banning grilling on wooden decks and balconies, and said she missed the part about the exemption for single and dual family dwellings.

On cameras in the courtroom

This commentary in the Washington Times notes that "[t]he trial of sniper suspect John Allen Muhammad has reignited the debate in Virginia courts over whether cameras in courtrooms inform the public or distract from the business of administering justice."

Loosening the AG's ruling on what are lawful political activities of electoral board members

As reported here in the Richmond paper and here in the Roanoke paper, Attorney General Kilgore has clarified his opinion to make clear that electoral board members are allowed to engage in some limited political activities, concluding that "Virginia law prohibits members from serving as paid campaign workers, but not as volunteers."

Recording the sale of flood-damaged cars

According to this AP report, "Virginia law requires the DMV to be notified before selling cars with more than $1,000 in water damage."

What is sufficient disability to toll the statute of limitations?

In Varney v. CONSOL, Inc., Judge Jones of the W.D. Va. noted that plaintiff's claim for benefits under ERISA was subject to the five-year Virginia statute of limitations for written contract claims that is "borrowed" under ERISA, declined to rule on the very interesting question raised by the plaintiff's claim that the limitations period was tolled on account of his physical impairments, upheld the plan's initial decision that plaintiff was limited to 24 months of benefits for depression under the terms of the plan, and rejected the plaintiff's new disability claims based on sleep apnea.

On the suit between Client-Centered Legal Services and LSC

In Legal Service Corp. v. Client-Centered Legal Services, the Fourth Circuit in a per curiam opinion for the panel of Judges Luttig, Michael, and Gregory upheld this decision by Judge Jones of the W.D. Va. to grant summary judgment on the LSC's claims to the building formerly used by Client-Centered Legal Services in Castlewood.

The sushi memo and local counsel

We had some fun in this office reflecting on "the sushi memo," which Howard Bashman has discussed here and here, and which was the subject of this Oct. 22 article in the NY Times (registration required). Unlike the paralegal who reported on where to find the good sushi in Manhattan, it is sometimes the role of local counsel when we are hosting the big-city lawyers who come to Southwest Virginia to point out were the good food is, or where the strong drink may be found, or both at the same time. (Or, another time, the out-of-towners wanted directions to the Virginian, since our federal court hearing ended in time for them to make their tee time.)

Rejection of testimony linking cellphones and brain cancer affirmed

In Newman v. Motorola, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Michael, and Shedd affirmed the dismissal of the plaintiff's claim that he got brain cancer from using his cell phone, where the district court had excluded the testimony of plaintiff's experts applying the standard of Daubert and Rule 702 of the Federal Rules of Evidence.

The AP had this article on the case.

One thing that is interesting to me about the case is that the opinion came out so soon, the case was argued on September 26 and decided October 22. The original argument date was postponed because of Hurricane Isabel.

$200,000 verdict upheld where old employer faxed bogus non-compete that caused job loss

In Greenlee v. Godlan, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Niemeyer, Williams, and Shedd upheld the $200,000 verdict against the plaintiff's former employer for tortious interference with contract under South Carolina law, where the old employer faxed a copy of an invalid non-compete clause to her new employer, which caused the new employer to fire her.

Summary judgment on discrimination claims of Roanoke police officers affirmed

In Altizer v. City of Roanoke, the Fourth Circuit in a per curiam opinion for the panel of Judges Widener, Shedd, and Duncan summarily affirmed without oral argument this decision by Judge Wilson of the W.D. Va. to grant summary judgment on the employment discrimination claims of the plaintiffs, Roanoke police officers who claimed that they were victims of reverse discrimination based on their race.

$300 personal injury verdict against Wal-Mart in W.D. Va. affirmed

In Hall v. Wal-Mart Properties, Inc., the Fourth Circuit in a per curiam opinion for the panel of Judges Wilkinson, Michael, and Shedd affirmed a $300 verdict over the plaintiff's challenges to the outcome and the conduct of his trial, which was conducted by Senior District Judge James C. Turk of the W.D. Va. in Roanoke. Appeals specialist Monica Taylor Monday argued the case before the Fourth Circuit for Wal-Mart.

Constitutional challenge to Va. statutory limit on tow charges dismissed under 11th Amendment

In Va. Ass'n of Towing and Recovery Operators, Inc. v. Commonwealth of Virginia, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz, Gregory, and Shedd affirmed the dismissal of the towing association's constitutional challenge to the statutory limit on nonconsensual towing charges under Va. Code § 46.2-1233.1, where Judge Hilton of the E.D. Va. had concluded that the relief sought against the Commonwealth was barred by the Eleventh Amendment.

Student loan discharge reversed

In U.S. Department of Health & Human Services v. Great Lakes Higher Education Servicing Corp., the Fourth Circuit in an opinion by Judge Motz, joined by Judge King, with Judge Michael dissenting, reversed the district court's decision that student loan debt could be discharged based on unconscionability. The majority held that the district court applied an improper, too lenient standard in determining what was "unconscionable." Judge Michael concluded that even under the correct standard, the debtors should have been let off the hook.

On mandatory minimum sentences

In U.S. v. Rice, the Fourth Circuit in a per curiam opinion for the panel of Chief Judge Wilkins, Judge Traxler, and Senior Judge Hamilton explained:

"We understand what the district court was trying to accomplish here. Rice was a relatively minor participant in the August 14, 2001 drug transaction and participated in this transaction not to make money but rather only to obtain some crack to fuel his unfortunate addiction to the drug. The district court understandably was compassionate, trying to give a break to an individual whom it deemed unworthy of a mandatory life sentence. The mandatory life sentence in this case may well reflect some of the inequities involved in the imposition of mandatory minimum sentences and any argument here is with the mandatory life sentence mandated and not with the compassionate rationale of the district judge. Indeed, mandatory minimum
sentences are designed to ensnarl the most culpable, but all too often they capture many who are considerably less culpable. Moreover, mandatory minimums often do not take into account the defendant’s role in the offense, which more accurately reflects the dangerousness and the culpability of the defendant. However, even though we may feel that the district court ultimately imposed a just sentence of 293 months’ imprisonment, we are not at liberty to disturb a mandatory sentence of life imprisonment that is consistent with the Sentencing Guidelines, the will of Congress, and the proportionality principles laid down by the Supreme Court and this court."

Hey, I got my Blogger sweatshirt

Those in the know about Blogger know that they sold us something, then decided to give it away for free, and those of us who paid for it get a sweatshirt instead of a refund, or something like that. Well, I put in for the sweatshirt, and it arrived at the house today.

Now, I don't remember how much money was involved, and anyhow, where else could I get a Blogger sweatshirt for any price? It even says Google on the sleeve.

Years ago, the old law firm had a picnic, and when I arrived there, one of my bosses said to me, "Steve, only you would wear a law review t-shirt to a firm picnic." My response was: "in this group, only I would have one." Maybe I'll find an appropriate venue one of these days to have some fun wearing my new sweatshirt.

How do Howard Bashman and Tom Goldstein do it?

I'm trying to finish three amicus briefs to be filed in the Supreme Court of the United States before Friday - and as usual it appears that the work may expand to fit the time available. So, no new blogging until the fun is over.

My two favorite lawyer jokes relate to writing on a deadline. One is about the lawyer who asks for 30 days to write a brief, and the judge asks if so much time is really required. Well, the first 27 days are that important, the lawyer answers, but those last three I can't do without.

In response to this, an Abingdon lawyer once told me of the lawyer who said to the judge, "I'm sorry, Your Honor - I didn't have time to write a shorter brief."

The cost of free lawyers

It says here that Virginia spent $57 million on court-appointed counsel for criminal defendants in 2002.

Norfolk lawyer Walter Kelley nominated for the E.D. Va.

One of the few Tidewater lawyers I met (however briefly) while I was in law school at William & Mary and can remember to this day is Walter Kelley, who has been nominated to be a U.S. District Court judge for the Eastern District of Virginia, according to this report.

Scott County prosecutor declines ESPN interview on football team hazing incident

Interim Commonwealth's attorney Marcus McClung in Scott County is refusing to talk to ESPN about the football team hazing incident from Rye Cove, concluding that it would add to the suffering of the victims to have their stories told on national television, according to this report in the Kingsport paper (registration required).

The article quotes Mr. McClung as saying the following:

"Marcus McClung said Thursday that he has spoken with officials at ESPN, the 24-hour sports cable network, but their requests for an interview from his office about the June 16 incident have been refused.

"It's not that we are trying to be rude to ESPN or hate ESPN or any other national media (source). This is a policy issue that my office is taking,'' said McClung.

"It just doesn't seem right to do (an interview) and blow this issue up any more than it is now. To think that this issue would not be reported on given the facts would be incorrect. But to further expand upon events to a national audience, I think, is not acceptable because the victims are trying to get on with their lives,'' he said."

Unrelated to matters of law enforcement, I'm sure Marcus would be glad to hear talk on ESPN about another McClung, Seth McClung, a major league baseball pitcher with the Tampa Bay Devil Rays. I think Seth and Marcus are brothers. The last I heard, Seth was injured and did not play the last part of the season. ESPN says here that Seth pitched 38 and 3/2 innings for Tampa in 2003, with a 4-1 record and 25 strikeouts.

States lobbying for end to bar on taxing Internet access

The Washington Post reports here on increased state lobbying of Congress for the right to tax access to the Internet, an issue not to be confused with collecting sales tax on items sold over the Internet.

Wise County files for rehearing in landfill fee case, administrator moves to dismiss civil rights claim

In these reports from the Coalfield Progress, here it says that Wise County has filed a petition for rehearing of the Virginia Supreme Court's decision in the landfill fee case, and here it says that the Wise County administrator has filed a motion to dismiss based on qualified immunity and failure to state a claim, in the federal civil rights suit brought by a woman who was criminally prosecuted for failure to pay the landfill fee before it was declared unconstitutional.

Moonshine in Fairfax County

In Fairfax County, they've got Bloomingdale's, Saks Fifth Avenue, Nordstrom's, and the latest offering sale, illegal home-brewed whiskey, according to this Washington Post article.

New theory in suit over inmate death at Wallens Ridge prison

According to this Roanoke Times report, the plaintiffs in a lawsuit over the death of an inmate at Wallens Ridge are now making the additional claim that "an automatic external defibrillator that would have saved the inmate's life was not used to revive him."

U.S. attorney for W.D. Va. speaks to county board against methadone clinic

This Roanoke Times article says that the W.D. Va.'s U.S. attorney, John Brownlee, spoke against allowing a methadone clinic to be located in Roanoke County, even though he had to admit there were no problems with crime in the areas of other methadone clinics in Southwest Virginia.

From what little I know of it, methadone treatment is sort of like probation, only those with a high-level of discipline can pull it off, and the people with the problem are often going to fail.

Viewpoints not unlike my own regarding the law schools vs. DOD

This column from the Yale Daily News says law schools who want to keep military recruiters off-campus are phony Free Speech advocates, repressing the views of both recruiters and those who might want to be recruited, and cites the words of Justice Brandeis, that "the remedy to be applied is more speech, not enforced silence."

Federal judgeship news - Urbanski as magistrate judge, while senators riled over 4th Circuit pick

Two stories via VLW - first, as reported here in the Roanoke Times, Mike Urbanski of the Woods Rogers firm in Roanoke, a commercial litigator and anti-trust expert, has been selected by the judges of the Western District of Virginia as the new magistrate judge to succeed Judge Glen Conrad. Second, the Richmond paper has this incredible story about opposition and snafus in connection with the nomination of William Haynes for the Fourth Circuit seat made vacant by the senior status of Judge H. Emory Widener, Jr.

Big chicken

The Roanoke Times has this article on the debate (or lack thereof) about who's the "Big Chicken" in the race between one of the Emicks and Morgan Griffith - and it has nothing to do with Hardees, the only place I would expect to see a Big Chicken.

Supreme Court says no to Hanover County wastewater case

According to this report, the U.S. Supreme Court has denied the petition for certiorari filed by landowners who brought suit against Hanover County, Virginia, regarding the construction of a wastewater treatment plant. In the Fourth Circuit, the district court's ruling for the landowners was reversed in favor of the County. The article notes that another form of the same litigation is still alive in the Circuit Court for the City of Richmond.

Bummed out in Southwest Virginia

In the Virginia Tech student newspaper, this report mentions, among other things, a state statistic which says that "residents of Southwest Virginia were 50 percent more likely to commit suicide than any other part of the commonwealth."

Virginia Tech still paying for suing the ACC and other Big East support

This article says that Va. Tech just got a bill of $229,657 as its share of the legal fees and costs while it was a plaintiff in the Big East vs. ACC lawsuit. In addition, Tech may continue to pay the Big East some of the other membership fees it would have owed if it stayed a Big East member.

Harmless error in baseball and law

From Findlaw, Michael Dorf in this article compares the like notions of "harmless error" in the rules of baseball and the common law.

Somehow, I doubt this will achieve the cult status of the "The Common Law Origins of the Infield Fly Rule," 123 U. Pa. L. Rev. 1474 (1974), the best-known law and baseball work known to law review nerds everywhere but unfortunately not (according to Ernie) available online.

The Amway-P&G feud leads to ruling on privilege to republish court documents on the Internet

In Amway Corp. v. Procter & Gamble Co., the Sixth Circuit in an opinion by Judge Batchelder, joined by Judge Clay, and with District Judge Schwarzer concurring separately, held that under Michigan's statutory "fair reporting privilege," Procter & Gamble and its law firm, Cincinnati-based Dinsmore & Shohl, could not be liable for the posting of the text of pleadings on the Internet of complaints filed in court with allegations against Amway.

The memorable opinion begins: "Recitation of the extensive and hate-filled history between P&G(1) and Amway(2) would take a writing as long as both the Old and New Testaments and involve at least one of the Good Book’s more prominent players. Although each side would likely argue, if given the chance, that its opponent was in the garden advising the serpent when Eve took her first bite of the apple, for our purposes we need only go back to the 1970s and Satan’s rumored more recent activity with and interest in soap products."

Two new law schools in Western North Carolina?

Via Law.com, this story from MSNBC reports that there both Elon University and UNC-Charlotte are working on plans for new law schools.

In recent months, there has been news about a new law school in Lynchburg, Virginia, and another in South Carolina, now these two in North Caroline. Maybe the founders of the Appalachian School of Law in Grundy were ahead of the curve.

John Edwards in Bristol today

I got some notices that U.S. Senator, former trial lawyer, and current presidential candidate John Edwards is in downtown Bristol today for some kind of rally in the park down the street by the courthouse, starting in about at 11:30 am. Perhaps this was sent to me because of my membership in the Virginia Trial Lawyers Association. (Unlike ATLA, VTLA does not require as a condition of membership that the applicant is only a plaintiff's lawyer.) The only other Democrat running for president who made an appearance this year in Southwest Virginia was Bob Graham, who since quit the race. North Carolina is not far from here but I doubt that John Edwards is very well-known in this area.

"No Child Left Behind" as potential political liability for President Bush

Today's Washington Post has this article which begins, "President Bush's No Child Left Behind education program -- acclaimed as a policy and political breakthrough by the Republicans in January 2002 -- is threatening to backfire on Bush and his party in the 2004 elections," and explains that "Bush is being criticized in swing states such as West Virginia for not adequately funding programs to help administrators and teachers meet the new, and critics say unreasonable, standards."

In Virginia, the fat will hit the fire this coming spring for graduation standards, when the Standards of Learning require tests to be passed for graduation. Last week, it was reported that the New York education authorities were lowering the standards on the mandatory tests for graduation, according to this NY Times article, titled "New York to Lower the Bar for High School Graduation," and which begins "New York State's education commissioner, Richard P. Mills, said Wednesday that the state would loosen the demanding testing requirements it has imposed for high school graduation in recent years, including the standards used to judge math proficiency."

"The ACC can run but it cannot hide"

Rule of Reason has this post on the dismissal for lack of personal jurisdiction of the NC-based Atlantic Coast Conference from the Big East lawsuit filed in a Connecticut state court, after which ruling the Connecticut Attorney General Blumenthal declared, ""The ACC can run but it cannot hide."

Still more on law schools suing over military recruiters tied to federal money

The Curmudgeonly Clerk caught my ramblings on this subject, and wrote even more on the subject in this interesting post, which among other things describes the lengthy disclaimer one law school is using to comply with the law under protest.

How will they distinguish the Agricultural Adjustment Act case from 1942?

In Wickard v. Fillburn, 317 U.S. 111 (1942), the Supreme Court held that a farmer who grew wheat for his own consumption (more or less) was nevertheless engaged in interstate commerce enough to fall legitimately within the scope of the Agricultural Adjustment Act.

Now, some lawyers in California are arguing that Congress does not the power to regulate marijuana grown for intrastate consumption, according this report, via CrimLaw.

Virginia criminal laws to be revamped

Via CrimLaw, this AP article reports on the efforts of Virginia's Crime Commission to revamp the criminal law in Virginia.

Wahoo on the Eleventh Circuit

This month's Twenty Questions on How Appealing features Judge Stanley F. Birch, Jr., of the U.S Court of Appeals for the Eleventh Circuit, who says (among many, more profound things) that he follows the fortunes of the Virginia Cavaliers.

Proud to make the honor roll, sad to see your blog go

As Ernie Svenson describes in more detail here, the author of ethicalEsq? is giving up his blog. The background on David Giacalone and his blog are here.

David is someone who has read and thought and written about some of the weird stuff on this blog, and I'm sad and proud that among his parting shots, he listed this blog on the ethicalEsq? "honor roll."

Jet ski case to be reheard, Bashman will be watching

As described here in this Howard Bashman post, the Fourth Circuit will rehear en banc the case of the jet skiier who went over the Robert Byrd dam.

Judge Niemeyer's dissent sparked a debate among Bashman readers, described here, on the issue of how to resolve conflicting lines of precedent from within the same circuit.

Coaches sue parent for defamation

Here is the Virginian-Pilot's version of the story about the three basketball coaches who have brought suit against the father of one of their players for defamation, after he has criticized them repeatedly to the School Board and threatened to sue the Board if the coaches were not fired.

As you might expect, the case caught the attention of Overlawyered, as shown here.

Newport News police cars missing an ''i'' in ''Virginia''

The headline says it all in this story about police cars with decals that say "Virgina."

The "tan man" used by the FBI for the evidence on Richmond city council member

Mark Holmberg has this column on the wild character used by the FBI to record evidence against Richmond political figures now facing prosecution in the E.D. Va.

Appalachian Regional Commission conference on telecommunications in Abingdon this week

As described here, this week Abingdon's Southwestern Virginia Higher Education Center will be the site for the annual conference of the Appalachian Regional Commission, with a focus on the role of telecommunications in the development of the Appalachian Region, which in Virginia includes (according to the government) the Counties of Alleghany, Bath, Bland, Botetourt, Buchanan, Carroll, Craig, Dickenson, Floyd, Giles, Grayson, Highland, Lee, Montgomery, Pulaski, Rockbridge, Russell, Scott, Smyth, Tazewell, Washington, Wise, and Wythe, and the Cities of Bristol, Buena Vista, Covington, Galax, Lexington, Norton, and Radford.

Tennessee man nabbed by Nigerian scam

The Kingsport paper (registration required) has this article describing how a man lost $6,300 in a version of the Nigerian scam.

The man posted an ad to sell his dog for $2,500. He was contacted by someone from Nigeria, who said that the man would be sent a cashier's check for $6,300 from someone who owed the Nigerian money, out of which the man could keep the money for the dog and send the rest back to Nigeria. At the last minute, the Nigerian wrote that the dog could not be shipped to Nigeria because of customs restrictions, and that the man should send on the rest of the money. The cashier's check turned out to be counterfeit.

A law enforcement officer quoted in the article said "be wary of anything from Nigeria."

As I recall, it is written in this book that scam artist Martin Frankel is among those who have been taken in by some version of a Nigerian scam. The book about Frankel is a great book.

More on the Commonwealth's Attorney race in Wise County

This article in the Bristol paper about the race for the position of Commonwealth's Attorney for Wise County raises the issue about why one of the candidates lost her job as an assistant Commonwealth's Attorney. Democrat Karen Bishop's old boss, Republican Joe Carico, says that she was fired after he found out she had filed motion to expunge the criminal record of drug dealer. Republican Chad Dotson has declared that he is the only candidate who has "never attempted to expunge the record of a convicted drug dealer."

In the article, Dotson also mentioned his daughter Reagan, whom I understand was named for Ronald Wilson Reagan, and not for King Lear's daughter - and thus I predict she won't have sisters named Cordelia and Goneril. (Anyhow, Shakespeare spelled it "Regan," and I have no doubt that young Reagan is of an entirely different character than the middle daughter of the play.)

Loser's appeal no bar to award of costs

In Singleton v. Virginia Department of Correctional Education, Judge Jones ruled that the pendency of the plaintiff's appeal was no bar to going forward with an award on the defendants' bill of costs.

Maybe the defendants would be willing to drop their claim for costs if the plaintiff would drop her appeal.

Judge Jones sets aside defaults in DirecTV cases

In DirecTV v. Adkins, Judge Jones of the W.D. Va. granted the motions of some of the defendants in one of the Virginia DirecTV suits relief from their default under Rule 55. The defendants were represented by Carl McAfee from Norton. The judge mentioned in a footnote that more that 8,700 defendants have been sued across the country by DirecTV. For earlier posts about this litigation, see here and here.

Link observed between choice of medical school and malpractice claims

Via the VTLA Eclips, graduates from some medical schools are more often sued for malpractice than graduates of other schools, according to this report.

Perhaps this will be a new consideration in the U.S. News review of schools - how often do the grads get sued.

Library rule requiring patrons to wear shoes pass constitutional muster

In Neinast v. Board of Trustees of the Columbus Metropolitan Library, the Sixth Circuit in an opinion by Judge Julia Smith Gibbons decided that the plaintiff, who "was asked to leave the Library for failure to comply with the Library’s requirement that patrons wear shoes while on its premises," had not suffered any violation of his constitutional rights, holding that "[t]he Library regulation survives rational basis review because the regulation provides a rational means to further the legitimate government interests of protecting public health and safety and protecting the Library’s economic well-being by seeking to prevent tort claims brought by library patrons who were injured because they were barefoot."

As Sneaking Suspicions points out here, however, who would have thought that what might you walk on around a library would be so nasty?

State enjoined from regulating voice-over-IP

Via Findlaw, this AP article says that a federal court has entered an injunction prohibiting the State of Minnesota from regulating voice-over-IP provider Vonage like a regular telephone company. The article notes that Vonage "advertises unlimited calls to anywhere within the United States and Canada for $39.99 per month."

VoIP is one of those things that I wonder whether the regular phone companies will either jump on the bandwagon or figure out how to suppress it or both. A consultant in this NY Times story from October 12 is quoted as saying, "VoIP is going to change everything," while another says that "The big telecom companies worry that VoIP could completely undermine their business within 12 months." A fellow I know in Bristol told me the other day that his office has voice-over-IP. It won't work when the server is down, but then I generally start thinking about going out to hit some golf balls when the server is down, anyway.

The Times article explains what is VoIP: "With VoIP, when someone speaks into the telephone, or microphone, the sounds are broken down into ones and zeros, sorted into packets of information, and then shot across the worldwide network of fiber lines, just like e-mail messages. At the designated end points, the packets of binary code are reassembled and turned back into sounds. In the regular phone network, calls initially pass over less efficient copper wires and the phone companies must maintain dedicated connections between users, instead of just mixing the information in with the rest of the Internet."

The Times article goes on to say, regarding the phone companies' response: "On the one hand, they are rapidly building the technology into their own offerings. MCI expects to have made a complete transition to VoIP by 2005. AT&T will offer a major digital voice service to businesses in 2004 and has begun a consumer pilot program, based mainly in New Jersey.

On the other hand, the regional Bell companies are arguing for new regulations that would tie up VoIP companies that let consumers make calls to customers on the regular phone network, as Skype hopes to do soon.

According to critics, VoIP companies receive an unfair advantage because the F.C.C. and state governments regulate them as information, not phone, companies because they rely completely on the Internet. That frees them from multiple tax and regulatory commitments, like directly paying into the federal "universal service fund" that subsidizes rural telephone access. Some state governments are considering that issue; in Minnesota last week, a federal judge overruled a decision by the state's Public Utilities Commission to force Vonage and other VoIP companies to submit to the state's traditional phone regulations. The F.C.C. and Congress will almost certainly take up the issue soon, too."

On strict scrutiny and grandparents' visitation rights

I don't know anything about domestic relations law, but one recurring question I get from a few people is what are the visitation rights of grandparents. Via Findlaw, in this opinion, the Iowa Supreme Court declared the state's grandparents' visitation rights statute unconsitutional, as the statute was not drawn narrowly enough to pass muster as an infringement on a fundamental right.

New tenant comes back from vacation, all her stuff has been sold

Yesterday's Roanoke paper had this article on travails of a young woman who moved all her possessions into her new apartment and went on vacation for a month, only to find on her return that the landlord sold all the stuff for $150, thinking it was leftovers from the prior tenant.

I guess these were bona fide purchasers, if this was a U.C.C. case.

Trying to move another "terrorist" case to the 4th Circuit

This column from the Village Voice mentions that the Department of Justice is trying to get the Jose Padilla case transferred from the Second Circuit to the Fourth Circuit:

"Ashcroft's Justice Department is striving mightily to persuade the Second Circuit that the case should be transferred to the Fourth Circuit Court of Appeals in Virginia, on jurisdictional grounds. Regarded by many lawyers, as well as civil libertarians, as the most conservative of all the circuit courts (which are just one level beneath the Supreme Court), the Fourth Circuit has already bowed to the president in the case of Yaser Hamdi. He is another American citizen being held indefinitely, without charges, and without access to his lawyer in a military brig. The Fourth Circuit has ruled that commander in chief Bush has the power to haul away an American citizen anywhere—at O'Hare, in Afghanistan, or on any American street. All Bush has to do is call him or her an 'enemy combatant.'"

Expert on the smells of the '60s testifies at trial of Dr. Knox

In this update on the trial of Dr. Cecil Knox in the W.D. Va. in Roanoke, one witness is reported as saying that "she certainly would know the smell of pot because she's 'from the '60s.'"

The article on the trial also reported on the voodoo bear and the dead squirrel:

"The stuffed brown bear bearing a flag with the first name of federal prosecutor Rusty Fitzgerald made its appearance during the early weeks of the trial. It was seized during a raid at Knox's practice, Southwest Virginia Physical Medicine and Rehabilitation, in February 2002. Fitzgerald introduced the bear as evidence in the early weeks.

Fitzgerald questioned former practice employee Tiffany Durham about the stuffed animal, which also had pins sticking in it and a target drawn on its head. Durham testified that the daughter of another former employee of the practice wrote his name on the flag. (The daughter was not charged in the case.)

Chief U.S. District Judge Samuel Wilson interjected.

"You didn't think you were doing Mr. Fitzgerald any harm by sticking pins in the stuffed animal?" Wilson asked.

Durham replied that she didn't think she was doing any harm. Fitzgerald was sick one day, but no link to the stuffed bear was ever established.

The squirrel carcass

Former practice employee Donna Stone first raised the specter of the dead squirrel in Knox's office. Durham later confirmed the report of the dead squirrel in Knox's office and elaborated on its demise.

She said she followed the smell to Knox's office, where the squirrel must have crawled up into one of the arms of a sweater that was lying on the couch.

Durham thought that at some point, someone must have mistakenly sat on the squirrel and squashed it. The squirrel remained in the sweater arm until Durham discovered it.

During a break in proceedings days later, lawyers from both sides of the case acknowledged that squatting squirrels are an underreported menace."

Criminal records don't deter Buchanan County candidates

The Roanoke paper reports here on the Board of Supervisors races in Buchanan County, where two of the candidates have convictions for misappropriation of public funds.

On the reasonable man and stuff you can't say

Tim Sandefur has this delightful post which quotes at some length from a description of that legal animal known as "the reasonable man" and further speculation on the absence in law of a "reasonable woman," adding as to the latter an immediate disclaimer (in which I join fully).

Ninth Circuit says F.C.C. wrong on classification of cable modem service

I've read the opinion, actually the three opinions (here), read the articles in the NY Times and the Washington Post and USA Today and the AP, and I have no idea what is the meaning or significance of the 9th Circuit's ruling in the cable modem case, other than that the Court did not agree entirely with the F.C.C.'s determination about what cable modem service is and is not, which could or could not have some implication as to whether cable system owners could be required to share their cable networks with other service providers. Most of the opinions have to do with the law of stare decisis, as much as anything else, so I guess if I had any sense I would read the 9th Circuit's earlier opinion in the Portland cable modem case.

At one time, there was some interest in at least one Southwest Virginia county in trying to force the cable franchise holder as a condition of the renewal to allow open access to its cable network, and I thought the idea was scrapped after some court in the Portland case ruled against such a requirement, but maybe I've got all this backwards in my mind.

Hey, that was my money

In Dove v. Commonwealth, a panel of the Virginia Court of Appeals in an opinion by Judge Annunziata joined by Judge Benton and Senior Judge Coleman reversed the appellant's conviction for embezzlerment, where the issue was the appellant owned a filling station (as we say here in Mayberry) and had failed to remit to his supplier the proper share of the proceeds from his gasoline sales, instead spending the money on other things. The Court concluded that even though Mr. Dove owed the money, it was not proven that the money was somehow property of the supplier in a way that it could be "embezzled" within the meaning of the statute, Va. Code § 18.2-111.

Beware the witness who calls time on his own deposition

In Jeffress v. Reddy, one of the issues was whether Judge Moon of the W.D. Va. properly excluded the deposition testimony of one of the plaintiff's expert witnesses. Prior to the deposition, there was some dispute about payment of the expert's fee, and the Court ordered that the defendant would pay for 2 hours at $500. The expert took this to mean that he could quit answering questions after two hours, which he did. The Court ruled at trial that this transcript could not be used as evidence, because of the way it limited the defense questions, saying "it just seems so grossly unfair that a witness can call off his deposition, say "I am not going to testify any more," and at the deposition he can decide you like what’s there and so you get to use the deposition." On appeal, the Fourth Circuit in a per curiam decision for Judges Widener and Wilkinson, joined in part by Judge Traxler, the trial court's ruling on the deposition testimony was sustained. Judge Traxler dissented on this issue, concluding that there ought to have been something else done other than the complete exclusion of the deposition testimony of the expert.

Action for declaration on reimbursing Medicare from suit proceeds dismissed as premature

In Baughan v. Thompson, Judge Michael of the W.D. Va. ruled that the action seeking a declaration of whether the government was entitled for reimbursement of Medicare benefits out of the proceeds of an insurance settlement could not proceed without first obtaining an administrative decision from the Secretary of the Department of Health and Human Services. In the underlying claim, the plaintiff was injured by her neighbor's dog, her medical care was paid for initially by Medicare, and then she got a settlement from the neighbor's homeowners' insurance, and was trying to figure out what if anything should be paid out to the government.

Pleading contribution, indemnification, and a third-party complaint in a case about bad water meters

In AMCO Water Metering Systems, Inc. v. Travelers, Judge Michael upheld the recommendations of Magistrate Judge Crigler to deny in part the third-party defendant's motion to dismiss the third-party complaint seeking contribution and indemnification. In particular, the Court ruled that the elements for a contribution claim were satisfied, even though there was no privity between the parties and the losses for which recovery was sought were purely economic. On indemnification, the Court held that the claim was premature. Regarding whether the claims were properly brought as third-party claims, the Court concluded that they were derivative, not independent, and therefore properly brought as third-party claims.

Search begins before warrant shows up, case dismissed

The Kingsport paper (registration required) has this report on the dismissal of a major drug case in Tennessee because the search warrant did not arrive at the scene until 15 minutes after the search began.

The article says in part:

"Criminal charges against three Michigan people alleged to be involved in the biggest crack cocaine seizure in the history of Hawkins County were dismissed Monday due to a technicality. . . .

During a preliminary hearing Monday in Hawkins County Sessions Court, TBI Agent C.N. Wilhoit, who obtained the search warrant, testified that he arrived at the Vandegrift residence 10 to 15 minutes after the search of the residence began.

As a result, Sessions Judge David Brand ruled that the search warrant was illegal and none of the items allegedly confiscated as a result of the search could be used as evidence.

Without use of that evidence, the Class A felony possession of Schedule II narcotics charges against Jackson, Coleman and Thompson - who were at the residence at the time of the search - were dismissed."

Pharmacy school to follow law school in Buchanan County

As reported here in Roanoke, Buchanan County officials plan to follow up on the success of the location of the Appalachian School of Law in Grundy with a new pharmacy school also to be located there.

Analysis of general district and juvenile & domestic relations district court statistics

I'm not sure what it means, but this summary of the case statistics from the different districts shows the rate of change in the numbers of cases for the different districts with colorful maps of the state.

The big case the government should have brought against Microsoft

This ZDNet article ponders the implications of the products liability suits filed against Microsoft - claims that certainly make more sense than the attempt to lasso the computer industry within the confines of an anti-trust case. Everyone wants to get what they are paying for - software that works. (And government users seem to have as many software problems as anyone.)

Keeping taxes out of 2003 state elections

This article in the Washington Post explains how and why Governor Warner has avoided making this year's legislative elections a referendum on his plans for tax reform (whatever those plans are).

Falwell law school update

Via VLW, the Lynchburg paper has this update on the plans to open a law school as part of the Reverend Falwell's Liberty University in Lynchburg in the Fall of 2004.

Today's Virginia tax reform item

This column from the Norfolk paper describes a few ideas on reforming the tax laws of Virginia. One Republican legislator would "wipe out hundreds of exemptions to the sales tax, apply the tax to most services, and lower the rate from 4.5 percent to 4 percent. Then, he'd eliminate almost every addition, subtraction and deduction to the state income tax, including an overly generous break for seniors, and revamp a schedule in which the highest tax rate -- 5.75 percent -- kicks in at $17,000. The new plan would leave the first $15,000 of income untaxed for everyone. A top rate of 6.25 percent would apply to income above $50,000." Another group has a plan that "revamps the income tax and expands the sales tax to services, while eliminating the sales tax on food and adjusting the corporate income tax. The income-tax design is more progressive than Louderback's, with a top bracket of 7 percent kicking in at $100,000, while on the sales tax side, health care services, insurance and utility bills are exempt. The plan would produce about $1.48 billion in new revenue, which the organizing project believes will be needed to balance the state budget."

(Now, if I can just figure out how to claim that legal services are good for your health and a form of insurance against bad things happening.)

Let me show you my collection of "I like Ike" buttons

In Suffolk, where there will be seven candidates on the ballot running for the office of clerk of court, a dispute has arisen between the local Republican nominee, and another candidate who also advertises that he is a Republican, over who is the "real" Republican candidate for the position, as reported here in the Virginian-Pilot.

Environmentalist lawyer quits State Water Control Board

The opponents of the selection of environmentalist Kay Slaughter to sit on Virginia's State Water Control Board finally got their way, as she has resigned over continued criticism the perceived conflict between her service on the board that decides what to do about polluters and her law practice as an advocate in environmental matters, according to this report in the Norfolk paper and this report in the Charlottesville paper.

On being a specialist in the defense of death penalty cases in Virginia

Mark Holmberg of the Richmond paper has this column on criminal defense lawyer Craig Cooley, who "has served as co-counsel for 60 or so people accused of capital murder."

After exposing the VaCo conference, Richmond paper targets VML

In this story, a writer for the Richmond paper reveals that local government officials went to the Virginia Municipal League convention in Norfolk and spent public money on golf and seafood - with 8 people from the town of St. Paul running up a tab of $9,030.69. To add perspective on this sum, the writer notes that "[h]ad Virginia Beach spent proportionally as much as tiny Saint Paul, the city's convention cost would have exceeded $3.78 million."

Comparing the county representatives and their gathering at the Homestead with the city and town officials who met in Norfolk, the paper concludes "the Norfolk conventioneers easily outspent their counterparts at The Homestead by showing up in greater numbers and spending more freely on their spouses, fine food, boat cruises and other extras."

Related articles are here, here, here, and here.

There was no description of what if anything the representatives learned of use from this meeting. Maybe the Town of St. Paul got $10,000 worth of knowledge from the meeting in Norfolk. Sometimes a seminar or convention is worth the money, although such things are impossible to measure. For example, new government officials, like new lawyers and new judges, might need a lot of education and education to get a clue.

There was also no consideration of what if any are the tax implications of these events - can the IRS claim that payments for the travel and entertainment expenses of non-working spouses count as additional income that should be taxed? It says here that "if a spouse, dependent, or other individual goes with you (or your employee) on a business trip or to a business convention, you generally cannot deduct his or her travel expenses," in this IRS publication, but I don't know anything about tax law.

Testing of forensic evidence in Virginia

This Bluefield paper article describes the system in Virginia for testing of forensic evidence, against the background of a murder in Bluefield, Virginia.

Damascus and the Virginia Creeper Trail

Beth Macy (one of my all-time favorites) wrote this article for Saturday's Roanoke Times about the success of the Virginia Creeper Trail and its effect on Damascus.

The article includes the following tale of one feathered resident:

"And then there's Pete. He's the rooster who routinely wanders through the back door of Adventure Damascus, the bike repair and shuttle shop. Bike mechanic and shop co-owner Bill Leonard doesn't technically own Pete, though he feeds him regularly and uses him in photo ops; writers from newspapers and Outside and Men's Journal magazines have featured the town - and Pete - in recent years. 'You can't eat a celebrity,' Leonard says of Pete. 'That's the only thing that's saved him from going in the dumplin' pot.'"

What's in a name?

I must confess I google my own name from time to time, with interesting results, such as this (bogus) interview, which begins: "Steve Minor has been leading naked motorcyclists on trips around the Sound for more than a decade."

In fact, I've never been to the Puget Sound.

2003 rarity - "closely-watched" race for a Va. legislative seat

The Washington Post has this article on the Virginia Senate campaign between the incumbent, Senator "Edd" Houck, "a Democrat who has long represented a Republican-majority district," and his Republican challenger, Robert G. Stuber.

According to the Post, "Stuber opposes all new taxes and proposes returning millions of dollars that the government receives from the personal property tax on cars and from families with children who attend private schools or are schooled at home, as Stuber's two children were."

The election is made interesting by the changing demographics of the district, in the outer sphere of the D.C. metro area.

Rail worker asbestos cases out of Roanoke

The Roanoke Times has this overview of asbestos claims brought by former Norfolk & Western employees in Roanoke. The article notes that the cases are "piling up" in state court. Virginia has a special statute for the management of asbestos cases. Va. Code § 8.01-374.1 provides that "[i]n any circuit court in which there are pending more than forty civil actions against manufacturers or suppliers of asbestos or products for industrial use that contain asbestos in which recovery is sought for personal injury or wrongful death alleged to have been caused by exposure to asbestos or products for industrial use that contain asbestos, the court may order a joint hearing or trial by jury of any or all common questions of law or fact which are at issue in those actions," and that "when separate or bifurcated trials will be conducive to judicial economy, the court may order a separate or bifurcated trial of any claim, or any number of claims, cross-claims, counterclaims, third-party claims, or separate issues, always preserving the right of trial by jury."

Identity crisis

In recent weeks, my wife got a notice from the DMV about a Jeep she never owned, my dad got a call from the Virginia State Police about an application to buy a gun he never filed, and I got a call about a credit card debt for an account I never had. (Now, Dad has no use for guns, but we could have used the Jeep and the lower credit card balance, but apparently those were not being offered.)