Droopy drawers posts

Some blog commentary on the droopy drawers law that is making its way through the General Assembly:

Virginians' underwear gets national attention

VA Introduces Anti-Underpants Bill

I see Paris, I see France ...

'Droopy drawers' bill an end to overexposure of underwear?

Caught With Your Pants Down

Way To Go, VA

Virginia Takes On The Serious Problems

Apparently stupidity is catching…

Origin of the verb to lynch

It says here: "But lynching is primordially a US invention--Larousse in fact defines it as 'summary justice, peculiar to the United States.' The Spanish verb linchar is a corruption of the English surname 'Lynch,' for Captain Charles Lynch, a Virginia judge during the American revolutionary war who advocated summary executions for those who stood with the British."

Counsel for the Kilgore campaign

Ashley Taylor is the counsel for the Jerry Kilgore for Governor campaign - a VMI and Washington & Lee graduate.

Maybe they can get Ralph Stanley for a similar event in Grundy

In the small world department, here is a law school offering regarding Bruce Springsteen from the Widener School of Law in Harrisburg, PA.

Way back when, I lived in Lancaster (which is almost Harrisburg), and there was some live music bar there where legend had it that Bruce Springsteen would show up unadvertised from time to time and jam with the regular band there, which was called the Sharks.

I went in there one time, sometime between 1985 and 1988, and sure enough there was a band, and the front men were these two bearded guys, and they were singing a cover version of one of the songs from the pop band called Heart. And I said to the people with me, I'm not complaining or anything, but those two bearded guys sound just like the Wilson sisters, and that's really weird, two guys belting out in falsetto, "What about love, don't you want someone to care about you."

What, freedom of contract for employers to provide domestic partner benefits in Virginia?

Rick Sincere has this post on the passage today of SB 1338, which makes me wonder what happened to the all-encompassing homophobia attributed to the legislators of the Commonwealth, that they would allow a consenting insurer to engage openly in unlimited contractual relations for the benefit of unmarried persons.

Must be because of all those religion professors sitting around in there taking notes

According to this review, a new book called Bad for Us: The Lure of Self-Harm answers the question "why male students in the University of Virginia locker rooms work so hard at not letting other men see them naked."

Va. Tech columnist figures it out

The Collegiate Times offers this analysis of the gubernatorial race, which says among other things that the keys to the race may be cultural issues and rural white males.

More on name-calling

On the topic of calling people Nazis, via this Sandefur post, I see this column from the Washington Post, which makes the startling point that not even all the real Nazis are commonly called Nazis, just the unfashionable ones.

NPR reports on the Jeremy Davidson case from Wise County

Here can be seen and heard National Public Radio's take on the case of the Wise County boy who was killed by the rock from the strip mine.

Reductio ad hitlerum

Bacon is on the mark with this post that says the Democrats who called their colleagues Nazis are off the mark.

Federal death penalty case begins in Abingdon

The Richmond paper reports here ("Jury selection in killings to begin," 2/7/05) that jury selection began today in a federal death-penalty case that was moved from Harrisonburg to Abingdon because of pre-trial publicity.

The article says that the charges were brought under "the federal Violence Against Women Act."

The article doesn't say it, but the presiding judge is Judge Samuel G. Wilson.

The return of Shaula

From the left, Shaula has this post that says one important aspect of the 2005 elections in Virginia is whether the Democrats will retain a "veto-proof minority" in the House of Delegates.

Ron Meisburg as swing vote on NLRB

This post discusses the record of Ron Meisburg during his time as a recess appointee to the NLRB. Mr. Meisburg was nominated by the White House on January 24.

Lawyer representing victims of drunk drivers

The Norfolk paper has this account of a lawyer who represents the families of victims of drunk drivers and who is an advocate for stricter drunk driving laws.

Unsworn declarations and other matters

HB 2652 would allow the use of unsworn declarations in place of affidavits, in some circumstances, much in the manner of declarations under 28 U.S.C. 1746.

SB 790 amends Va. Code 8.01-428 to allow parties who somehow don't get notice of the entry of a final order up to 60 days to seek post-judgment relief, which would restart the clock for an appeal.

SB 827 would amend Va. Code 8.01-417 to require that parties who obtain documents by subpoena to send them to the other parties, upon written request (and payment of reasonable costs).

SB 1123 provides for waiver of service of process, in the manner of Rule 4 of the Federal Rules of Civil Procedure.

Recodification of Title 1

HB 2640 recodifies Title 1.

In case you wondering, two things will still be true, in the new Va. Code 1-200 and 1-201:

1. "The common law of England, insofar as it is not repugnant to the principles of the Bill of Rights and Constitution of this Commonwealth, shall continue in full force within the same, and be the rule of decision, except as altered by the General Assembly."

and

2. "The right and benefit of all writs, remedial and judicial, given by any statute or act of Parliament, made in aid of the common law prior to the fourth year of the reign of James the First, of a general nature, not local to England, shall still be saved, insofar as the same are consistent with the Bill of Rights and Constitution of this Commonwealth and the Acts of Assembly."

The Knights

In an unusual coincidence, one of Southwest Virginia's most distinguished lawyers went to the same Northern Virginia high school as my wife, which school is the subject of this commendation being considered in this session of the General Assembly.

Litigating the death penalty by the numbers

Prof. Althouse has this interesting post which says, among other things, that the defendant Atkins, of the Atkins v. Virginia case, now scores a 75 on his IQ test, which the prosecutor says is high enough to pass for his execution to pass constitutional muster.

On Friday, the Richmond paper had this report about the case. Today, the NY Times has this story ("Inmate's Rising I.Q. Score Could Mean His Death," 2/6/05) (registration required)

Under Va. Code 19.2-264.3:1.1, "mentally retarded" means "a disability, originating before the age of 18 years, characterized concurrently by (i) significantly subaverage intellectual functioning as demonstrated by performance on a standardized measure of intellectual functioning administered in conformity with accepted professional practice, that is at least two standard deviations below the mean and (ii) significant limitations in adaptive behavior as expressed in conceptual, social and practical adaptive skills." Evidently, two standard deviations below the mean equals an IQ of 70.

Good thing his dad was not a proctologist

In this piece, the Washington Post takes Senator Allen to task for using too much football terminology.

Maybe Allen would do better with stories like this one:

"It reminds me of a story here in southwest Virginia about a horse thief. And the jury goes through the whole case and they say, 'Not guilty, but you have to return the horse.' And he's not guilty, but you have to pay for those gifts." -- Sen. George Allen (R-Va.) after the Senate Select Committee on Ethics severely admonished Sen. Robert G. Torricelli (D-N.J.) for violating gift rules by receiving cash and other favors from David Chang, a former campaign supporter and convicted felon.

Watchdogging the Virginia State Legislature

Via Waldo, Watchdogging the Virginia State Legislature is keeping score on the General Assembly.

Single form of action bill advances

SB 1118, which "creates a single form of pleading for civil actions," is making its way through the Senate.

I read about this a while back and wondered what became of it. The change is to the good. It will eliminate one perennial problem, figuring out what to call that initial pleading, especially when you've got some statutory claim and nobody knows whether it is legal or equitable.

Virginia civil procedure is filled with incredible strangeness and ambiguity. You'd think after all these years, it would be pretty well-known, for example, what can be raised by a plea and how, or what can be raised on demurrer and how, and maybe these things are well-known but widely ignored.

On guns and smut in Virginia's libraries

This story says the General Assembly will not pass legislation to ban guns in Virginia's public libraries. On an unrelated matter, it says here that a Senate committee did not pass a smut-filtering requirement for public libraries in the Commonwealth - the measure failed on a 7-7 vote in the General Laws committee - but it says here that the House passed a similar measure on Friday by a vote of 76-17.

Third judgeship bill passes Senate, gets past House Appropriations by vote of 14-9

On Friday, the Senate approved a third judgeship for the 28th Circuit, as shown here.

Also, it says here the vote in the House Appropriations committee on the new judgeship was 14-9 in favor. The ayes were Dels. Callahan (R), Putney (I), Dillard (R), Morgan (R), Tata (R), May (R), Sherwood (R), Cox (R), Councill (D), Phillips (D), Spruill (D), Stump (D), Joannou (D), and Abbitt (I). The nays included Dels. Hamilton (R), Ingram (R), Wardrup (R), Dudley (R), Reid (R), Jones, S.C. (R), Hogan (R), Scott, J.M. (D), and Miles (D).

I wonder what all that was about.

Verizon bill to bypass cable franchise requirements gets held over

The Richmond paper reported here that the legislature will not pass in this session legislation proposed by Verizon that would allow it to provide cable television services without going through the normal franchising process. In some places in Virginia, Verizon has applied for a traditional franchise.

Gay marriage amendment tied to fears about Virginia judges

The Washington Times says here that supporters of the gay marriage amendment to the Virginia Constitution "fear Virginia judges will be as liberal as those in Massachusetts."

Well, you knew somebody was going to say that. In this Balkinization post, Balkin explains yet again how the strategy of litigation over gay marriage - with the New York case being the latest ruling - is not to be preferred over a strategy of achieving results through the legislature. He's probably right, in the sense that any court decisions in favor of same-sex marriage will cause an escalating counter-reaction - to the detriment, really, of the justice system in general and judicial independence in particular.

When the members of the Virginia Supreme Court are next up for reappointment, will they be asked questions about their ruling in the fornication case and what they think about same-sex issues? I'm guessing that they will. I'm guessing that every judge up for appointment or reappointment at every level in every state will be asked those kinds of questions, for the foreseeable future. And, probably, that's a shame.

Proposed amendments to Virginia's fence law tied to Caroline county murder case

The Richmond paper reports here on proposed amendments to the fence law of Virginia, which allows landowners to stick others with the costs of their fence. The article notes that the Caroline County murder case was the end of a dispute between adjacent landowners over payment for a fence.

Fourth Circuit hears the case of the Wiccan against Chesterfield County

The Richmond paper had this article on oral argument before the Fourth Circuit in the case of the Wiccan who sued to get on the list to give the opening prayer at Board of Supervisors meetings. (Incredibly, the article does not say who were the judges on the panel - further evidence that nobody at the Richmond paper reads this blog.)

The office of the County Attorney for Chesterfield has seven lawyers, including two who were at William & Mary law school while I was there. They get more than their share of interesting cases.

Count me among the 14,000

I really enjoyed this article about the $1 million donation to U.Va. by Professor Sabato.

Wise County as possible pilot site for e-filing program in Virginia state court

The Coalfield Progress reports here and here on those who want to have electronic filing in the Circuit Court of Wise County.

Lately, I've heard that some other local judges passed on an invitation to apply to become one of the rural test jurisdictions for this program, and also some big-firm lawyers from other states have told me a few horror stories about e-filing in their home jurisdictions.

I-81 problems mostly hype?

This VDOT study says, as I read it, that Interstate 81 is not in bad shape - yet. Among other things, the overall average speed is 69 mph, more than the speed limit anywhere in Virginia. The "weighted crash score" (whatever that means) for Interstate 81 is lower than the statewide average for interstate travel - the other interstates being 64, 66, 77, 85, and 95.

I drove up to Harrisonburg on Thursday and back on Friday and there were not too many tense moments. Way back when, I drove frequently from Williamsburg to McLean, and once you got to Fredericksburg, it was just a free-for-all. The big trick in driving on interstate out here in the hills is figuring out how to get out of the way of the trucks blasting down the downslopes.

The difference between a but for instruction and a motivating factor instruction

In a Title VII retaliation case, the Fifth Circuit has held that using the "lower standard" on causation of "motivating factor" instead of "but for" is reversible error, according to this Jottings post. The case is here.

Golly, I've argued that before, but I can't remember the circumstance.

Would it have made a difference if the guy was a lawyer in the Martin case?

According to this post, a Philly judge has ruled that the plaintiffs suing lawyers for bad legal advice are not barred by the illegality of the conduct they undertook based on the bad advice, as sort of a public policy exception to the illegality defense.

ACSBlog cites Judge Wilkinson

The mostly liberal ACSblog in this post quotes Judge Wilkinson's dissent in Humphries v. Ozmint.

In the Humphries case, the dissenters were Wilkinson, Michael, Gregory, and Duncan, not the likeliest of combinations (or the unlikeliest).

Southern Virginia.com

I've not yet unraveled southernva.com but it sure looks interesting.

Municipality not liable under section 1983 for euthanasia of 80 dogs and a bunch of cats

In Bogart v. Chapell, the Fourth Circuit in an opinion by Judge King, joined by District Judge Flanagan from North Carolina, with Judge Williams dissenting, held that the South Carolina plaintiff had no procedural due process claim for the destruction of her property interest in her overcrowded bunch of cats and dogs without some kind of pre-deprivation hearing, because the loss was the result of random and unauthorized activity, as it was contrary to state law, and the government affords the plaintiff a post-deprivation remedy in the form of some kind of money damages claim.

Judge Williams dissented, claiming that the outcome was determined by two prior Fourth Circuit opinions involving the Parratt/Hudson/Zinermon line of cases dealing with the question of what is random and unauthorized.

I think Judge Williams has got the better of it, although it would be nice if the defendants could say, oops, this was unauthorized, so we can't be liable. Perhaps I am confusing Parratt with the requirements of Monell, for custom, policy, or practice, but I don't think in either issue can the locality inevitably defend by claiming we have a policy against constitutional violations.

Former judge Starr gets the Fourth Circuit treatment

This article about an appearance by former appeals court judge Kenneth Starr before the Fourth Circuit says: "Afterward, the justices stepped down from the bench and shook hands with Starr and Baldwin. One of the judges approached Starr and asked the California resident, 'Where's your tan?''

The Fourth Circuit, notably among all the courts everywhere, greets every lawyer after every argument. I've asked around and no one has ever told me that any other court does precisely that.

TalkLeft has this post.

Mendota trail project stalled in litigation

The Kingsport paper reports here ("Lawsuits stall development of Mendota Trail project," 2/2/05) that the rail-to-trail project at Mendota has been stalled in litigation, and trail advocates have a new website.

Church split statute riles national denominations

SB 1305 changes Virginia law with respect to the property of churches that are part of national denominations, supposedly in a way that helps the locals keep the property if they split from the big church. The Washington Post has this article with the response of the big denominations and other opponents of the bill.

What I can't figure is whether this statute would have some impact on independent country churches, currently I think it does not, but they have property disputes like everyone else.

Culpeper jury awards $50 million in sexual assault case

The Richmond paper reports here ("Jury awards $50 million in teen's sexual assault," 2/1/05) that a Virginia state court jury awarded $50 million in a sexual assault civil case brought against a man by a young woman who was victimized when she worked for him as a babysitter.

Zoning case lost in Virginia Supreme Court, brick plant closes down

The Charlottesville paper reports here ("Stung by loss, General Shale to close plant," 2/1/05): "Embattled brick-maker General Shale will close its Somerset operation in the wake of a Supreme Court ruling that thwarted its bid to mine elsewhere in Orange County."

Domestic asault and bettery

In Cowell v. Com., the Court of Appeals in an unpublished opinion affirmed the defendant's conviction under Va. Code 18.2-57.2, and stated in a footnote: "We note that the sentencing order erroneously recites that the felony offense of 'domestic asault [sic] and bettery [sic] (third offense)' is a violation of Code § '18.2-57.21 [sic].'"

Chief Judge Jones allows outside evidence in ERISA case

In Smith v. The Prudential Ins. Co. of America, a dispute over life insurance benefits under an ERISA plan, Chief Judge Jones decided to deny summary judgment to allow for consideration of additional evidence, beyond what was available to the plan administrator when it made its decision to deny benefits.

Police officer gets qualified immunity for warrantless search and seizure

In St. Clair v. Town of Rocky Mount, Judge Conrad granted the motions for summary judgment of the individual police officer and the town, in a case where a man claimed that he was the victim of an illegal search and seizure. The plaintiff's girlfriend came to police and said he had verbally abused and pushed and thrown a flower pot at her, and she wanted a police escort to the house to retrieve her things. The police met the plaintiff at the property and handcuffed him for ten minutes while the woman went into the house, to which she had a key, and where she had been living (so far as the police knew).

Another retaliation claim survives summary judgment

In Bowen v. Tempur Production USA, Inc., Chief Judge Jones granted partial summary judgment for the employer in a Title VII case, but allowed the case to go forward on the retaliation claim.

The opinion says: "Indeed, some evidence indicates management may have decided to fire Bowen as early as June 3, 2003, just two weeks after she first complained to a supervisor." Ouch.

NLU stops making sense

Here is a post commemorating the greatest post ever on Notes from the Legal Underground.

Psycho blogger, qu'est que c'est.

Man out on bond not in custody of court for purposes of escape statute

In Davis v. Com., the Court of Appeals in an opinion by Chief Judge Fitzpatrick joined by Judges Bumgardner and Frank overturned a decision by Judge Campbell of Grayson County and concluded that the defendant while he was out on bond awaiting sentence was not in the custody of the court for purposes of Va. Code 18.2-479(B).

Parental leave for school involvement?

SB 713 is a proposal that parents would require the following:

"Every employer shall allow each person employed by him in connection with any business or service, which person is a parent, guardian, or person standing in loco parentis of a school-aged child, at least four hours leave annually so that the employee may attend or otherwise be involved at that child's school."

The bill also gives a cause of action for employees against whom employers retaliate for exercising their leave rights under the new statute.

Senate bill for new judge in 28th Circuit gets through second Senate committee

It says here that the bill to approve another judgeship for the 28th Circuit has now made it through the Senate Finance committee. Previously, it passed through the Senate Committee for Courts and Justice. On the House side, the parallel bill has made it through Courts of Justice to the Compensation & General Government subcommittee of the Appropriations Committee, which includes Dels. Tata (Chairman), Putney, Ingram, May, Wardrup, Scott, J.M., and Joannou.

Bill to stop the Interstate 81 project

The Augusta Free Press has this article on SB 1319, which would put a stop to the proposed truck lane expansion of Interstate 81 in Western Virginia.

Standard of review for factfinding based on documents

In U.S. v. Stevenson, Judge Niemeyer wrote the following:

"Because we can read Stevenson’s letter and draw inferences from it just as the district court did, Stevenson argues that we should review the district court’s finding with respect to the letter de novo, and not for clear error. The assumption underlying this argument is that an appellate court reviewing documentary evidence can make a factual finding as well as a district court can, and, to the extent that an appellate court draws an inference inconsistent with a finding of the district court, the appellate court should follow its own finding. The argument, of course, recognizes that appellate courts defer to district court findings when they are based on credibility because credibility can only be determined by the district court, which is in a position to observe witnesses.

It is indeed true that only the trial court can observe "the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding of and belief in what is said," which is important to the determination of whether a witness is to be believed. Anderson, 470 U.S. at 575. But any assertion that this is the governing principle for appellate court deference to a district court’s factual findings is too limited and has been explicitly rejected by the Supreme Court. . . . It is well-established that even when findings of fact are not based on observations of credibility, but rather on undisputed evidence or on entirely documentary evidence, appellate courts must nonetheless defer to the trial court’s factfinding function."

Latest appeal in the Atkins case

The Daily Press reports here that in the ongoing case of Daryl Atkins, the defense lawyers are trying to get an immediate appeal of the trial court's ruling that on a retrial of the issue of whether or not he is retarded, the court will tell the jury that Mr. Atkins has been convicted of murder and is sentenced to death.

The King and Abe Lincoln

If the Baconblog lives to be 100, it will never catch my attention with anything better than this headline: Was Elvis a Melungeon?. The complete story says Elvis, Abraham Lincoln, and Ava Gardner were probably Melungeons.

I get a lot of hits on the blog from strange Google queries involving Melungeons.

Get out of the liquor business

One time when we were down at Hilton Head, a woman with a British accent came up to me in the grocery store (that big one with the good sandwiches, I don't remember the name) and she asked where was the liquor. (Why she chose me as likely to know the answer, I couldn't say.) I tried to explain to her that in fact, the only liquor sold in the state was through the state-run stores, of which there was one nearby. Why would that be, she asked, not knowing that everyone in the U.S. is an historian and constitutional scholar. I think it has something to do with the constitutional amendment that undid Prohibition, which amendment gave broad powers over liquor to the states, I replied. (Every detail struck her as more and more bizarre. "Prohibition?" she wondered.)

Here Waldo comments on legislation that made it out of committee that would get the Commonwealth out of the liquor business.

Street preacher caught neither betwixt nor between

In Moore v. City of Asheville, the Fourth Circuit in an opinion by Niemeyer, joined by Judges Luttig and King, held that the plaintiff street preacher nabbed in Asheville could not sue under section 1983 to overturn the state administrative proceedings, which he had failed to appeal, affirming the district court's determination to abstain from interfering with the state proceedings.

The Court did allow that the abstention doctrine would not apply to a suit for wholly prospective relief from the application of the city ordinances challenged by the plaintiff.

Federal question jurisdiction in a dispute covered by arbitration clause

In Discover Bank v. Vaden, the Fourth Circuit in an opinion by Judge Wilkinson held that "[a] federal court may . . . hear a § 4 [of the Federal Arbitration Act] petition to compel arbitration if, but for the arbitration agreement, subject matter jurisdiction over the case would otherwise exist by virtue of a properly invoked federal question in the underlying dispute."

Roanoke and Norfolk papers say pay court-appointed lawyers more, in fact pay everybody more

In this editorial, the Roanoke Times says the legislature should pay more for court-appointed attorneys in criminal cases, and while they're at it, every thing else. The editorial says: "The pending legislation happens to require funding for the criminal justice system, but the demand could just as well be for roads, mental health, the environment or the arts."

In this editorial, the Norfolk paper jumps on board, and gives Attorney General candidate Bob McDonnell some credit for his proposals in this area.

A few interesting cases

In this story about the retirement who has worked in the General District Court clerk's office in Albemarle County for 28 years are mentioned: "the case of the bull who wandered into a neighbor's swimming pool" and "the man who was sued for eating more than his allotment of a shared hog."

First black judge in Arlington County, Howard law graduate, dies at 80

The Washington Post has this interesting story on the life and times of Judge Thomas Randolph Monroe, who served Arlington County as a judge from 1972 to 1993.

The obituary says in part:

"Born in the Eastern Shore's Northampton County, near Cape Charles, Va., Judge Monroe worked as a caddy at a whites-only golf course and was a star center fielder for the town's baseball team. He graduated from Johnson C. Smith University in Charlotte and served as a sergeant in the Army in the Pacific and European theaters during World War II. He received his law degree from Howard University in 1951 and set up a private law practice in Arlington the next year.

He practiced law for 20 years and quickly established himself as a civic leader, serving as president of the Arlington chapter of the NAACP in 1955 and circulating a petition to desegregate Arlington's schools. Into the early 1970s, he stayed in the struggle, joining a group of parents whose children attended the all-black Drew Elementary School in a desegregation suit against the county."

Extra value from having prisons in Wise County

This commentary from the Roanoke paper says that the census figures credit Wise County with the inmate population of the penitentiaries there, which means more government money from the state and federal government based on population.

The commentary cites a study from the Brennan Center at NYU Law School, Incarcerated People and the Census: Painting a Distorted Picture of Virginia, which even has a color picture of the prison at Wallens Ridge on the cover.

Proposal cuts attorney fees, limits substantive provisions, of Virginia Consumer Protection Act

Hugh Lessig of the Daily Press has this account of proposed amendments to limit attorneys' fees and punitive damages under and carve out some exceptions to the substantive scope of the Virginia Consumer Protection Act, contained in SB 912, a bill proposed by Senator Norment from Williamsburg.

Another Judy Jagdmann story

The Kingsport paper has this mostly-fun story about the next Attorney General of Virginia, who will be sworn in this week by her father, who is quoted at some length in the article.

The article says that Judge Williams was so excited when he learned of Ms. Jagdmann's confirmation that he picked up the tab for his colleagues. I interpret this to mean that he ordered peach cobbler for everyone.

The post-Booker thinking of the U.S. attorney for the E.D. Va.

Professor Berman has this post about a speech given by the U.S. Attorney for the Eastern District of Virginia, with his ideas about the effects of Booker and Fan Fan and what he thinks the Congress should do about it.

One interesting point was that the E.D. Va. judges had stuck within in the guidelines in all but one of 20+ sentencings since the Supreme Court cases came down, with the one sentence below the guidelines.

Professor Berman concludes regarding one of the points made that the Department of Justice does not merely want mandatory guidelines, it wants mandatory guidelines without having to meet its burden of proof before juries.

In many ways, this entire discussion is strange to me. In state court in Virginia, it is my impression that the defendants plead guilty to get the benefit of the guidelines and to avoid the indefiniteness of sentencing by the juries, which have been known from time to time to really stick it to drug dealers and such.

Stuff that I thought was interesting on Iraqi Election Day

Last night I'm watching Fox News (yeah, yeah), and they've got this fellow who was a former hostage over there, a truck driver from Mississippi or some such, and he winds debating the propriety of Sen. Kennedy's call for troop withdrawal with Jesse Jackson, and he managed to get the upper hand, even though Jackson started out with some memorable things to say about what it was like when he got to vote for the first time in the 1960s. I'm not too sure how far you can go an analogy between the effect of the Voting Rights Act for black Americans in the 1960s and this weekend's vote in Iraq, but the Rev. Jackson seemed to be saying the Iraqis just aren't worth it and the Southern man was saying, no, we need to help these people, for their sake and ours.

This was all very ironic and interesting, but once I saw who was winning I clicked back to the Golf Channel, for an important replay of old dudes playing golf in the mists of Hawaii, the superficial fellow that I am.

When I went to vote back in November, I had some reasons, but none of them were as compelling as whatever made those Iraqis run the gauntlet to be counted over there this weekend. I understand (via Instapundit) that already the voting has resulted in some shifting goalposts (which seems like a perilous phrase for either side when talking about Iraq).

But, if you were looking for reasons for the vote in November, a lot of what bummed people out about Kerry is described in this Althouse post about his appearance today on Meet the Press. (There's a lot more to Prof. Althouse besides the new car.)

That Carolina game, ouch

In this post, Dave Sez sums up the horror of today's Virginia basketball game.

The last time I watched the Tarheels play in Charlottesville, they were ranked No. 1, and lost to the Cavaliers in January 1986, in what was probably the most satisfying basketball game I ever saw anywhere except for U.Va. beating Roy Williams and the Kansas Jayhawks when I was in Kansas City in 1995 (and Conestoga Valley beating #1 Carlisle and Jeff Lebo at the Pennsylvania State Farm Show Arena in 1983).

Adding remedies for criminal defendants whose lawyers miss the appeal deadline

Del. Albo has proposed a new statute in HB 2628 that would add a potential post-judgment remedy for criminal defendants whose lawyers miss the appeals deadline.

The proposal is the subject of this editorial in the Washington Post, which has been critical of the gotcha criminal procedure rules in Virginia. In the text, Del. Albo says he hasn't filed an appeal in 10 years because they are too perilous. The Post comments: "It's a bad state of affairs when procedural hurdles are so onerous as to scare away competent counsel."

Brian Patton has this post.

What would Ben Domenech say about this?

This piece from the Daily Progress says that William & Mary President Tim Sullivan gave $1,000 to the Democratic opponent of a Republican delegate, which may have the effect of riling some Republicans into opposing the much-coveted charter status for W&M, U.Va., and Virginia Tech.

House of Delegates says no to obesity suits

The AP reports that the Virginia House of Delegates passed a bill prohibiting suits over obesity.

Commonwealth appeals to U.S. Supreme Court discovery order in Earl Washington case

This story says the Commonwealth has appealed the Fourth Circuit ruling on the discovery to be produced by the Virginia State Police in the Earl Washington civil case.

Virginia admits traffic cameras increase accidents?

This post from TechDirt links to a report from the Virginia Transportation Research Council that concludes that with traffic cameras there are more accidents and more injuries.

Why would I wear a blue bracelet

The CCFA sells blue bracelets with the words Got Guts.

Tasteless Halloween costumes at VMI?

Backcountry Conservative has this post with various links about an investigation at Virginia Military Institute into bad Halloween costumes, including cadets dressed as Nazis, that showed up in pictures on the internet, with this link to VMI's response.

Still no news on 30th circuit judgeship

The General Assembly reappointed a circuit court judge yesterday, but did not take action this week on the 30th Circuit position, and the Coalfield Progress reports here there may be no decision before February 17.

Daubert amendment goes down in committee

I am informed that "the Daubert House Bill failed to pass the Courts subcommittee."

More on the Martin case

Here is an article from ABAnet and here is an article from Findlaw on the Virginia Supreme Court's decision in the Martin case.

This Martin case still gives me a heart attack. There are many things that bother me about it, and one of them is that I never liked Zysk in the first place. I mean, with regard to the defense of illegality, it's one thing to say you can't sue for your share of the loot from a bank robbery, but shouldn't there be some kind of informed consent issue with respect to having sex with somebody who has herpes? Don't people get criminally prosecuted for spreading their diseases to unwitting sex partners? The whole point of the Martin case, I thought, is that the plaintiff would not have had sex with the guy if she had known. There ought to be a way to explain the causation in terms that would avoid the illegality, and leave the constitutional case for a criminal prosecution - when the Commonwealth would be a party and could defend itself.

I read that Ms. Jagdmann was asked in her confirmation hearings whether she would appeal Martin, but is there a thing the Commonwealth can do about it, at this late date? Ask to intervene and file for rehearing? Can anyone do that, even the Commonwealth?

Also, what really bugs me is that I thought the nub of Lawrence was that morality was not a good enough reason for criminalization of private, consensual sex acts. The words "disease" or "health" are nowhere to be found in the opinion, even though the amicus briefs were all over the "public health" issue. The idea that the public health rationale was found wanting in Lawrence strikes me as at best an inference and more accurately a mistake. The Virginia Supreme Court looked at Lawrence and read more into than I think is there, particularly since they concluded somehow that Lawrence vetoes rationalizations for sex laws that were not discussed in the opinion.

Felony cat killing case gets certified to grand jury in Loudoun County

The Washington Post reports here on the case of a guy in Leesburg who stomped his girlfriend's cat to death because the cat tried to eat his sandwich and then bit him.

NY Sun looks at Judges Wilkinson and Luttig as potential Supreme Court nominees

As seen in various places, the NY Sun had this article about Judges Wilkinson and Luttig as potential Supreme Court nominees. One area discussed is how they might be haunted somewhat by the most deferential stance on the War that the Fourth Circuit has taken, even beyond what the Supreme Court was willing to swallow. Besides which, Judge Wilkinson has written a fair amount, which doesn't seem to help anybody.

Jagdmann confirmed this afternoon

The AP is reporting that the House vote was 94-0 and the Senate vote was 38-0 approving Judy Jagdmann as Attorney General.

So, she's starting out with a 100% approval rating.

I suspect, if the Lord is willing and so on, I will see the new Attorney General in June, if not before, and tell her I am delighted at her new (if temporary) position.

No constitutional violations for motorist who got cited for refusing to say anything about insurance

In Burrell v. Commonwealth of Virginia, the Fourth Circuit in an opinion by Judge Luttig, joined by Judges Motz and Duncan, held that the police who charged the plaintiff for refusing to give insurance information at an accident scene did not violate his Fourth or Fifth Amendment rights.

On the Fifth Amendment issue, where the plaintiff was claiming he had a Fifth Amendment right to refuse to give information about insurance to the police at an accident scene, the Court relied on the analysis in Chavez v. Martinez, 538 U.S. 760 (2003). In that case, the plurality concluded that "a violation of the constitutional right against self incrimination occurs only if one has been compelled to be a witness against himself in a criminal case," and the plaintiff was not claiming that anything that happened at trial implicated his Fifth Amendment rights, so there was no claim.

On the Fourth Amendment claim, the Court bypassed the interesting question of whether there was a seizure when the plaintiff was given his citations, and went on to conclude that the citations were supported by probable cause.

My own 6 tips for appeals

Inspired by and with apologies to others, I offer these tips from my own experience and stuff I've seen or heard. I would make it a Top 10 list, but then I've only argued 8 appeals.

1. Duct tape beats no tape. Years ago, Kurt Pomrenke had a case where the Fourth Circuit clerk's office sent back the opposing party's briefs because the staples were uncovered, so opposing counsel covered them with duct tape and sent them back, and that evidently worked. Check the Rules before trying this yourself.

2. Don't leave after the first question. In one case I know about, counsel for the appellee said in response to the first question, that's all I have, and I don't feel well, and then he turned around and left. There was no rebuttal.

3. Avoid fire alarms. In one of my cases, the fire alarm went off during the other side's argument. The presiding judge said, I think we have to treat this as real. So, all the lawyers trudged out to Bank Street or whatever is behind the courthouse. My client was there. I never asked him if he pulled the switch. Anyhow, after we all got back inside, opposing counsel got some extra time, but neither he nor the judges seemed to have much interest.

4. Be careful with the words and names. In one argument I watched on C-SPAN, the lawyer was dismayed to realize that he had just made some bold declaration about the "Ninth Circus." All those present who were members of the Circus laughed aloud, but I think that guy lost the case. Coincidence? On the other hand, everyone recalls that guy in the Bush v. Gore case who mangled all the justices' names, adding in the names of former justices, before Justice Scalia helped him out with an introduction, "I'm Scalia." That guy got some laughs but I think he was on the winning side.

5. "Mr. Minor, what you're saying can't possibly be true." If Justice Compton says something like that to you, probably it is not going well, or at least that's been my experience. Indeed, according to the (unpublished!) opinion I got back in that case, what I was saying was not true at all, which seemed to me a shame, after I'd gone to the trouble of convincing the circuit court that it was true.

6. The best way to find out about an opinion is when you are at the beach. One time I called into the office while I was on vacation and found out that the Fourth Circuit had ruled in my favor and the Kingsport paper wanted to talk to me about it. So, I kept on driving, with no shoes and no shirt, calling everybody on my car phone and laughing and waving at strangers and nobody seemed to mind. This almost never happens when I am at the office. I'm not sure if this rule works as well for somebody like Steve Emmert, who is at the Beach every single day.

Fourth Circuit splits with Judge Boyle and two other circuits on post-dismissal rulings over forfeited historic document

In In re Matthews, the government seized a copy of the proposed amendments to the U.S. Constitution that was believed to have been sent to the state of North Carolina in the 1780s by George Washington. The document was seized from the lawyer for the appellant. The forfeiture action was eventually dismissed voluntarily, after some other group conveyed their interest in the property to North Carolina. Notwithstanding the dismissal, District Judge Boyle declared that he had in rem jurisdiction over the document, and determined that it belonged to North Carolina. On appeal, the Fourth Circuit in an opinion by Chief Judge Wilkins held that the trial judge had no authority to make rulings about the property after the case was voluntarily dismissed by the government.

Chief Judge Jones denies discovery from MSHA on Hyde Amendment matter

In Brandon Enterprises, LLC v. U.S., the Court rejected a discovery request from the defendants who won their trial in an MSHA case and are now seeking attorneys' fees under the Hyde Amendment.

Three finalists for Wise County judgeship with decision expected this week

The Coalfield reports here that this week the General Assembly will decide between Tammy McElyea, Greg Stewart, and Tim McAfee as the successor to Judge Robert Stump of the Wise County Circuit Court.

Will the next Virginia governor be sworn in in Williamsburg?

The Newport News paper has this article ("Next Va. inauguration may move to Wbg," 1/25/05) which says that support is gaining for a proposal to move the next governor's inauguration to Williamsburg, Virginia's second capital from 1699 to 1780, in part because the State Capitol in Richmond is still being reconstructed.

Well, why not, I like Williamsburg.

Or, if that doesn't work out, here is a whole list and here is another of Virginia's other capitals, including the Clam Capital of the World, the World's Capital of Old Time Mountain Music, the Fried Chicken Capital of the World, the Trout Capital of the Eastern United States, the Shipbuilding Capital of the World, the Turkey Capital of the World, the Ham Capital of the World, the Softshell Crab Capital of the World, the Flounder Capital of the World, the Apple Capital of the World, and the Christmas Capital of Virginia. I would add to those lists the Salt Capital of the Confederacy and the Peanut Capital of the World.

Proposals to increase fees for court-appointed counsel in Virginia

The Washington Post has this article ("Court-Appointed Va. Attorneys May Get Raise," 1/25/05) describing the state of proposals to increase for court-appointed lawyers in criminal cases in Virginia.

Chief Judge Jones grants stay without bond for appeal in insurance proceeds case

In Connecticut General Life Ins. Co. v. Riner, Chief Judge Jones granted a stay without bond of his ruling regarding the disposition of life insurance proceeds on a policy where the insured was found to have been murdered.

Two of my favorite things in Roanoke I've never actually observed firsthand

They would be Ruby the Tiger and the Texas Tavern (which is mentioned at least in the headline of this Ben Beagle column).

Fourth Circuit speaks on Booker

In U.S. v. Hughes, Chief Judge Wilkins wrote an opinion for a panel including Judges Traxler and Gregory, applying Booker, reversing the judge-made sentence enhancement in the case, and remanding for resentencing in accordance with Justice Breyer's opinion.

The Court said:

"Consistent with the remedial scheme set forth in Booker, a district court shall first calculate (after making the appropriate findings of fact) the range prescribed by the guidelines. Then, the court shall consider that range as well as other relevant factors set forth in the guidelines and those factors set forth in § 3553(a) before imposing the sentence. . . . If the court imposes a sentence outside the guideline range, it should explain its reasons for doing so. In light of the excision of § 3742(e) by the Supreme Court, we will affirm the sentence imposed as long as it is within the statutorily prescribed range, see Apprendi, 530 U.S. at 490, and is reasonable, see Booker, Opinion of Justice Breyer for the Court at 18."

Uh-oh

This post from My Own Backyard lists the SW Virginia law blog among the "local Leftie blogs" for Virginia.

I knew I would get kicked out of the Old Dominion Bloggers Alliance, unless it is possible to be both leftie and rightie.

In this regard, I am inspired by Peyton Manning's post-game remarks, quoted here, in which he offered by way of explanation, of a pass he threw left-handed, the admonition of his old high school football coach, who said Peyton must learn to be "amphibious."

Man bites dog

In what must be a first, the Norfolk paper in this editorial criticized the FOIA request of a Republican delegate because of his political motives.

Ah, can it be true? I thought newspapers loved FOIA and hated the idea that anyone's motive for requesting government papers was ever a matter of legitimate concern to the government.

The next time one of their brethren or sistern among the media gets shot down on a FOIA request, will the Norfolk paper inquire into the reporters' motives before deciding whether or not the FOIA request was a good thing? Not likely.

Bat fight

Waldo has this fine post about opposition to Delegate Stump's proposal to make the big-eared bat the official bat of the Commonwealth.

No word yet from the manufacturers of the Louisville Slugger or the Bruce Wayne Foundation.

Nothing cruel or unusual here

Regarding a memo written by former Defense Department chief counsel William J. Haynes II, the Balkin blog says: "The DoD General Counsel (who's recently been renominated for a seat on the U.S. Court of Appeals for the Fourth Circuit) concluded that threats of killing a detainee's family members, and waterboarding, and forced nudity, and the use of dogs to induce stress, etc., not only did not violate the UCMJ, but are 'humane!"

Can't define heinous, atrocious, and cruel, but know it when I see it

In Bell v. Cone, the Supreme Court reversed the Sixth Circuit for interfering with a Tennessee death penalty case on the grounds that the terms "especially heinous, atrocious, or cruel" were unconstitutional vague in a case where the defendant killed two elderly people by beating them with multiple, crushing blows to their skulls.

Supreme Court rules on taxability of lawyer fees to client in contingent-fee cases

In Commissioner v. Banks, the Supreme Court issued an 8-0 opinion which considered the question of "whether the portion of a money judgment or settlement paid to a plaintiff’s attorney under a contingent-fee agreement is income to the plaintiff under the Internal Revenue Code." The answer is yes: "We hold that, as a general rule, when a litigant’s recovery constitutes income, the litigant’s income includes theportion of the recovery paid to the attorney as a contingent fee."

One of the two cases involved employment discrimination claims that were settled. The Court refused to give retroactive application to the tax provisions of the American Jobs Creation Act of 2004, but observed that its the future application of the statute will limit the effect of its ruling in connection with future claims of unlawful discrimination.

Judge Boyle more likely to make to Fourth Circuit now?

This article republished on law.com runs the list of President Bush's court of appeals nominees-in-waiting, and concludes among other things that the prospects for confirmation of District Judge Boyle to the Fourth Circuit are increased now that John Edwards has been replaced by a Republican in North Carolina.

Bankruptcy delays recovery on $1 million harassment verdict

The Richmond paper reports here ("TimesDispatch.com | Sexual-harassment win is now justice delayed," 1/23/05) on three plaintiffs who won a whopper judgment against a Burger King franchisee that then filed for bankruptcy.

Why wait to November?

In this editorial, the Washington Times more or less endorses Jerry Kilgore over Tim Kaine to be the next governor of Virginia.

On Bible breaks at Virginia schools

The Washington Post tries to throw some dirt on "Bible breaks" at Virginia schools in this article ("Bible Breaks at Public Schools Face Challenges in Rural Virginia," 1/23/05).

Bovender says NASCAR could be like hot donuts

In this column, Kingsport lawyer Bill Bovender worries whether NASCAR will go the way Krispy Kreme.

Kingsport law firm merger

The Kingsport paper reports here ("Kingsport law firms plan merger, move to ECU complex," 1/23/05) on the merge of the Wilson Worley and Moore Stout Waddell & Ledford firms in Kingsport, which gives the new firm 18 lawyers.

Steve Baril at Abingdon airport Monday afternoon

It says here that Republican Attorney General candidate Steve Baril will be at the Virginia Highlands Airport at 5:00 pm.

I wonder how many people will be there.