Jaded JDs

Jaded JD is back with, among other things, this post about jaded young lawyers.

How judges cope with threats

The Christian Science Monitor has this article titled How judges cope with everyday threats on the job.

The magnitude of this problem struck me a few months back when one of the local judges who is about my age told me a story that freaks me out completely, and so of course I insisted that it be retold the next time after that when we were again in a tale-telling mode.

When I was a law clerk, it was about the time of the letter bomb that killed an appeals court judge in the 11th Circuit (as I recall). So, we got a memo from the Administrative Office of the United States Courts, and it read like a script from the Road Runner cartoon - don't open a mysterious package if it has exposed wires or is ticking or says Acme Bomb Company on the return address. (OK, I made that last part up.)

Soon after we got the memo, the computers showed up.

"I'm not opening it," I said. "You open it."

When the gavel strikes, you will bark like a dog

The Washington Post reports here ("Hypnosis Evidence Fought in 'Stalker' Trial," 3/3/05) on the unusual use in the Route 29 stalker case of the testimony of witnesses who have undergone hypnosis to remember what happened to them.

Two of the three Loudoun County spam convictions get the boot from trial court judge

Via CNN, the AP reports that a circuit court judge has thrown out the convictions of two of the three convictions in Virginia's first spam prosecution.

On the Loudoun County downzoning case

Leesburg2Day has this report (with reader comments) with the background on the monster zoning litigation from Loudoun County, as to which the Virginia Supreme Court ruled against the County in a case decided today, on interlocutory appeal.

Radford takes Penny Kyle, will Lady Luck declare for William & Mary job?

Now that it has been announced that the head of the Virginia Lottery will be the next president of Radford University, perhaps the leadership at the College of William & Mary will expand its search to consider a real Virginia icon.

On the future Judge McElyea

Here is the Coalfield's article on the selection of Tammy McElyea to be the next circuit court judge for the 30th Circuit.

Supreme Court case summaries - get 'em while they're hot

Here from the Virginia judiciary website and here from Steve Emmert are summaries of today's opinions from the Virginia Supreme Court. Maybe I'll get around to them myself in a little while.

Three-way split on panel for DOC employee vs. employee case

In Givens v. O'Quinn, the Court reversed in part and affirmed in part the judgment by Chief Judge Jones. The panel included Judges Luttig, Wilkins, and Gregory, and each wrote separately:

"Affirmed in part and reversed in part by unpublished per curiam opinion. Judge Luttig wrote a separate opinion concurring in the judgment. Chief Judge Wilkins wrote a separate opinion concurring in the judgment in part and dissenting in part. Judge Gregory wrote a separate opinion concurring in the judgment in part and dissenting in part."

The disagreement is over the question of whether there was action under color of state law, as would support a section 1983 claim, when two DOC employees beat up the plaintiff DOC employee.

Still no ruling in the sniper Muhammad case

This report notes how the Virginia Supreme Court did not include the Muhammad case among its opinions released today (a rare Thursday opinion day).

The first thing we do, let's boot the insurance defense lawyers

According to this report, 20 insurance defense lawyers were split off from the Virginia office of Shaw Pittman in advance of that firm's big impending merger.

Southwest Virginia lawyers for Steve Baril

I saw a copy of this letter not too long ago, with names of lawyers from Roanoke south and west who are supporting AG candidate Steve Baril.

From way out here, the names on the letter include Greg Edwards, Ronnie Montgomery, Tom Scott, Bill Bradshaw, and Joe Wolfe. In the last 24 hours, I've sent a letter, made a call, or sent an e-mail to three of those five, about something or the other.

Bristol telephone ruling

On February 25, the State Corporation Commission ruled in favor of BVU on Sprint's claim that BVU is cross-subsidizing its local telephone service.

To see the opinion, type in this case number (PUC-2002-00231) at this site.

I guess I was out of town that weekend, missed the whole thing.

Death can't and won't be sought for Malvo

This article from the Fredericksburg paper says that the Prince William County prosecutor has abandoned plans to try the teen sniper Malvo on additional charges in the attempt to secure the death penalty.

Another Hokie has it figured

In this column from the Virginia Tech paper, the writer explains how the candidacy of Sen. Potts as an independent will take votes away from Tim Kaine.

Big lot of confusion

In Adventis, Inc. v. Consolidated Property Holdings, Inc., a panel of the Fourth Circuit in an opinion by Judge Duncan, joined by Judge Motz, reversed Judge Turk's ruling in a trademark case, concluding that he should acted on the party's admission on the likelihood that the likelihood of confusion between the various marks involving the words "Big Lot" and "Big Lots".

Both sides made admissions during discovery on the confusion, both sides moved for summary judgment, and after Judge Turk denied the motions, both sides sought an obtained permission for interlocutory appeals. The majority ruled that since there were admissions on the issue of likelihood of confusion, Judge Turk erred by denying summary judgment based on the conclusion that there was no likelihood of confusion between the marks. THe majority remanded the case for determination of the issue of priority of use.

Judge Luttig wrote separately: "I am sufficiently unclear as to the reasons for the majority’s holding, and therefore the implications of the court’s decision, that I simply concur in the judgment reached by the court."

One contract defense I'll never get to use

Today in Tenet v. Doe, the unanimous Court affirmed the rule that secret contracts made with spies are not enforceable in court.

I'm always looking for contract defenses, but I can't figure out how to apply this one in my normal practice. ("Your Honor, my client is actually a front for the CIA . . . .")

More doubletalk from the Roanoke Times

In this editorial, the Roanoke paper applauds the Supreme Court's turnabout on teen murderers, then goes on to say: "Bush needs to base his choice not on political ideology but on a prospective justice's intellectual ability and respect for court precedent."

If respect for court precedent was the measure, the majority in the death penalty case would not have made the grade. It is the absence of justification for deviation from precedent that makes the ruling objectionable.

Three Virginia teen murderers were executed back when it was legal

The Roanoke Times has this article ("Before Supreme Court outlawed death penalty for juveniles, Virginia executed 3 in such cases," 3/1/05) by Laurence Hammack, which says that three juvenile murderers were executed in Virginia since 1998.

The Virginia mold case dealing with subject matter jurisdiction - and Daubert

Law.com has this Legal Times article about Roche v. Lincoln Property Co., as to which the Supreme Court has granted certioriari. The issue on appeal is whether there was diversity jurisdiction between the parties. The subject matter of the case is personal injury caused by toxic mold.

The appeals court opinion was written by Judge Gregory, joined by Judge Widener and Senior Judge Beam from the Eighth Circuit. It is not that clear to me that the case is very important, because you'd think that normal business are not so ambiguously structured as the corporate defendant in this case.

To me, the most interesting aspect of the case is that in the district court, the trial court judge applied Daubert, booted the plaintiffs' evidence, and granted summary judgment. Roche v. Lincoln Property Co., 278 F. Supp. 2d 744 (E.D. Va. 2003). The application of Daubert in a mold case is in itself interesting, because there is much chicanery and not much in the way of real standards in the mold investigation business.

By appealing subject matter jurisdiction, the plaintiffs have escaped the judgment for the defendants, and may get back to Virginia state court, where Daubert (as such) does not apply. If the case is remanded, how will the state court trial judge view the preclusive (or persuasive) effect of the federal court's Daubert ruling? Some, none, or total? It is very interesting to consider - a rare chance under almost laboratory conditions to test the differences between the law of the Commonwealth and the federal evidence rule.

Award of $350,000 in fees to would-be kicker in Title IX case against Duke affirmed

In Mercer v. Duke University, the Fourth Circuit in an opinion by Judge Traxler, joined by Judges Luttig and King, affirmed the award of substantial attorneys' fees in the case of the placekicker who was discriminated against on account of being a woman, even though she only got nominal damages, as her award of punitive damages was wiped out when the Supreme Court determined that punitive damages are not available under Title IX.

Wiliam & Mary grad among the contested appeals court picks

The Washington Post notes here that William G. Myers, III, a nominee to the U.S. Court of Appeals for the Ninth Circuit, is one of the persons renominated by President Bush. The article says that he graduated from the College of William & Mary and also the law school at the University of Denver.

Supreme Court strikes down death penalty for persons under age of 18

The Norfolk paper has this AP report which says the U.S. Supreme Court has ruled 5-4 that the death penalty for juveniles is unconstitutional. The article says that the laws of Virginia and 18 other states allowing executions of persons under 18 are affected by the decision.

Baril calls for tougher sentencing guidelines

The Richmond paper reports here that AG candidate Baril wants sentencing guideline reform "because too many criminals are getting out of jail too soon."

The article concludes: "Baril said the Criminal Sentencing Commission should hold public hearings for commonwealth's attorneys and law enforcement, add jury trials to the sentencing statistics, and give the General Assembly and governor more oversight."

You didn't hear of him here first

The Richmond paper has this story characterizing Senator Puckett as "a little-known state senator from Russell County in rural Southwest Virginia."

No insult added to injury

Chief Judge Jones, having ruled for the defense in a bench trial, denied the defendants' requests for attorneys' fees in Brandon Enterprises, LLC v. U.S., concluding that the U.S. position was not that bad.

Math Olympics

From Richmond.com, a candidate for statewide office was asked to:

"Name three things you'll find in your briefcase,"

and replied:

"A daily schedule, two BlackBerry devices and an extra cell phone."

First, the inauguration; next, the party dollars

The Newport News paper has this article that says the City of Williamsburg, now that it will be the site of the 2006 inauguration, is trying to make sure the inaugural parties are also held in Williamsburg.

Those trailblazers

On Saturday, the Bristol paper opined: "Trailblazing lady lawyers earn praise."

I've spent a lot of time talking to people about these judgeships, as it is a favorite pastime, but the gender of any of the candidates has not been part of the discussion.

Notwithstanding all that liberal thinking, I was more intrigued by an article in today's Bristol paper about a young woman who said she has not seen much racial prejudice growing up as a person of color here in Bristol. I think perhaps she has been more fortunate than others. Also, she wasn't asked whether she had experienced sex discrimination.

Brandishing a gun by describing it in a note

In U.S. v. Groce, Judge Luttig concluded that the government met its burden of proof on the charge of brandishing a firearm in connection with a bank robbery, where there was evidence that the robber had the gun with her (even though no one saw it) and that she made its presence known by way of the note she gave the teller, which said, among other things, "I have a gun."

On Judge Merhige and privacy

The Cavalier Daily has this commentary on Judge Merhige's ruling in the Virginia sodomy case from 1975.

Turnover among Virginia school superintendents

The Norfolk paper has this interesting article ("Pressures haunt school division chiefs," 2/28/05) about the turnover in the position of school superintendent for school divisions in Virginia.

In the old days, out here in the hills, the powers that be ran the County, whichever County, and the school superintendent could do their bidding and keep his job forever. Now, that's no longer the case. I am unaware of any statistics, but I think that having elected school boards has contributed in some measure to the increased turnover among superintendents.

Correction

The Senate bill electing new general district court judges was amended to take out the name of Sage Johnson as judge for the Twenty-eighth Judicial District.

Perhaps there is some order of operations that needs to be observed, so that the new judgeship to which Judge Freeman is being elevated is fully in place before Sage Johnson is voted in to replace him on the district court.

Hopefully, I'm too lazy to violate copyrights

Brian Patton was warned by the Kingsport paper about reproducing too much stuff from the Kingsport paper.

Legal Underground has this commentary.

But had it been washed?

The Coalfield Progress reports here: "One of three local teens accused of stealing a city police vehicle appeared in court wearing a blue sweatshirt Sgt. Eddie Bevins recognized as his own."

Roanoke Times comes down against judicial selection by the legislature

This editorial from the Roanoke paper begins: "Charges that political donations, not merit, decided a New River Valley appointment reveal why legislators should not appoint judges."

The editorial concludes: "Virginia needs either a nonpartisan selection commission or a system of gubernatorial appointments and Senate confirmation that will at least reduce naked political influence and focus on judicial merit."

Oldest practicing lawyer dies at age 102

It says here that a U.Va. man died on Tuesday night after 81 years as an active member of the Florida bar.

Two women circuit court judges for Southwest Virginia

The Bristol paper has this article about the selection of Tammy McElyea and Teresa Chafin along with Isaac Freeman as the new circuit court judges for the 30th, 29th, and 28th circuits.

The Washington Post opines on the filing deadline missing reform act for criminal cases in Virginia

In this editorial, the Washington Post declares the General Assembly ought to pass the law that would create the possibility of relief for convicted persons in the Commonwealth whose counsel miss the deadline for filing a notice of appeal.

I have wondered about this bill.

Group opposes Fourth Circuit nominee Judge Boyle, wants to see unpublished opinions

Here some outfit demands "the full, immediate disclosure of Judge Boyle's unpublished District Court opinions." Well, I don't know, I would have thought those opinions are down at the courthouse in an order book, where they can copy them for something like 50 cents a page.

Or, they can be obtained through the federal archives. I picture a warehouse sort of like the closing scene in the movie, "Raiders of the Lost Ark."

I had a conversation not too long ago with an examiner in the federal Trademark office. She was talking about the conversion from paper to e-filing. They still keep the paper somewhere. I mentioned the scene from the movie. She laughed and said all federal employees know about that scene.

Another editorial on Judge Merhige

The Lynchburg paper opines: Merhige not afraid of upholding the law.

VBA honors Appalachian School of Law for community service

This press release says the Virginia Bar Association has given an award to the Appalachian School of Law for its community service requirements.

MSNBC takes on the Virginia campaign

Mark Murray of NBC News has an article titled Ready or not, here comes campaign season, which includes some discussion of the Virginia governor's race.

Spam filter eats notice of court date, lawyer misses court date

This post presents the frightening scenario of the lawyer who goes on vacation and misses a court date because his spam filter ate an e-mail from the court.

The Senate votes on new judges

From the journal for the Senate

ELECTION OF CIRCUIT COURT JUDGES, GENERAL DISTRICT COURT JUDGES, JUVENILE AND DOMESTIC RELATIONS DISTRICT COURT JUDGES, AND MEMBERS OF THE JUDICIAL INQUIRY AND REVIEW COMMISSION

Circuit Court Judges (40-Y 0-N)
First Judicial Circuit: Randall D. Smith
Fifteenth Judicial Circuit: J. Martin Bass
Fifteenth Judicial Circuit: H. Harrison Braxton, Jr.
Fifteenth Judicial Circuit: George Mason, lll
Eighteenth Judicial Circuit: Lisa Kemler
Twenty-second Judicial Circuit: David A. Melesco
Twenty-eighth Judicial Circuit: Isaac St. C. Freeman
Twenty-ninth Judicial Circuit: Teresa M. Chafin
Thirtieth Judicial Circuit: Tammy S. McElyea
NOMINATED BUT NOT ELECTED
Twenty-first Judicial Circuit: Edwin A. Gendron, Jr.

General District Court Judges (40-Y 0-N)
Second Judicial District: Calvin R. DePew, Jr.
Fourteenth Judicial District: John Marshall
Fourteenth Judicial District: James S. Yoffy
Fifteenth Judicial District: Frank L. Benser
Fifteenth Judicial District: J. Overton Harris
Fifteenth Judicial District: Gordon A. Wilkins
Twenty-third Judicial District: M. Frederick King
Twenty-eighth Judicial District: Sage B. Johnson
Twenty-ninth Judicial District: Jack S. Hurley, Jr.

Juvenile and Domestic Relations District Court Judges (39-Y 0-N)
Second Judicial District: Gerrit W. Benson
Fifteenth Judicial District: Julian W. Johnson
Fifteenth Judicial District: Gerald F. Daltan
Eighteenth Judicial District: Constance Frogale
Twentieth Judicial District: Pamela L. Grizzle
Twenty-seventh Judicial District: Marcus H. Long, Jr., (36-Y 0-N), reconsidered (40-Y 0-N), agreed to
(36-Y 0-N)
Twenty-seventh Judicial District: M. Keith Blankenship (38-Y 0-N), reconsidered (39-Y 0-N), agreed to
(38-Y 0-N)
Twenty-ninth Judicial District: Henry A. Barringer

The House votes on new judges

From today's journal for the House of Delegates, the following were elected as new judges:

Circuit Court Judges
Randall D. Smith, First Judicial Circuit
J. Martin Bass, Fifteenth Judicial Circuit
H. Harrison Braxton, Jr., Fifteenth Judicial Circuit
George Mason, III, Fifteenth Judicial Circuit
Lisa Kemler, Eighteenth Judicial Circuit
G. Carter Greer, Twenty-first Judicial Circuit
David A. Melesco, Twenty-second Judicial Circuit
Isaac St. C. Freeman, Twenty-eighth Judicial Circuit
Teresa M. Chafin, Twenty-ninth Judicial Circuit
Tammy S. McElyea, Thirtieth Judicial Circuit

General District Court Judges
Calvin R. DePew, Jr., Second Judicial District
John Marshall, Fourteenth Judicial District
James S. Yoffy, Fourteenth Judicial District
Frank L. Benser, Fifteenth Judicial District
J. Overton Harris, Fifteenth Judicial District
Gordon A. Wilkins, Fifteenth Judicial District
Edwin A. Gendron, Jr., Twenty-first Judicial District
M. Frederick King, Twenty-third Judicial District
Jack S. Hurley, Jr., Twenty-ninth Judicial District

Juvenile and Domestic Relations District Court Judges
Gerrit W. Benson, Second Judicial District
Julian W. Johnson, Fifteenth Judicial District
Gerald F. Daltan, Fifteenth Judicial District
Constance Frogale, Eighteenth Judicial District
Pamela L. Grizzle, Twentieth Judicial District
Marcus H. Long, Jr., Twenty-seventh Judicial District
M. Keith Blankenship, Twenty-seventh Judicial District
Henry A. Barringer, Twenty-ninth Judicial District

On the judicial activism of Judge Merhige

The Norfolk paper has this editorial on the judicial activism of Judge Merhige.

Court of appeals throws out cocaine conviction, says there is no such thing as a legal search incident to a citation

In Moore v. Com., the Court of Appeals in an opinion by Judge Elder reversed the denial of the defendant's motion to press, where the Court concluded that after the defendant was pulled over for driving without a license, under Va. Code 19.2-74, he should have been given a citation and sent on his way, instead of being held and searched.

The intersection of law and technology, Hokies and Spiders

Via Denise, I see that EEJD Blog is the work of a Virginia Tech engineering grad now in his second-year of law school at the University of Richmond.

Speaking of which, I think I'm right that some guy named Figueiras who is the brother-in-law of Dawn in my firm was the co-founder with Rick Klau of JOLT at Richmond.

I bet they don't do this in John Behan's office

From the AP via Yahoo, this story begins: "A drunk Monroe County prosecutor thought it would be funny to run naked across a parking lot and hop into a friend's car, authorities said. But the joke was on him when he jumped into the wrong car and was arrested."

New ban on executions in the Commonwealth for pregnant ladies

Both the House and the Senate have passedHB 1812, which prohibits the execution of pregnant murderesses.

Oh, the good old days

Various Virginia bloggers have linked to the letter to the editor by Richmond lawyer Wyatt Durrette, a longtime Republican, whose letter begins: "In bygone days most Republicans championed the principles of federalism, which valued the integrity of state governments and limitations on national prerogatives. They felt strongly that the separation of power and responsibility between state and national governments fostered diversity and best served to protect the rights of our citizens."

I'm sure he knows more about it than I do, but I don't think there were any such bygone days - certainly not during the civil war, and not during reconstruction which included passage of the 14th Amendment, and not since Nixon was elected (who established the EPA, among other things) or even during the day of Reagan (father of the 55 mph national speed limit, or was it the national drinking age). The only such era might have been during what I think of as the Lochner era, culminating in the anti-New Deal decisions by the Republican majority court in the 1930s - the era that said child labor and minimum wage and food safety laws were unconstitutional. Of course, those weren't states' rights decisions, those cases said no level of government could do those things. Conceivably, federalism has made a comeback of sorts in the last 20 years, as the Supreme Court has limited claims against the states and found limits to the power of Congress under the Interstate Commerce clause.

LII summary of the Kelo v. New London eminent domain case argued tomorrow

Here from Law Information Institute is a handy summary of the eminent domain case being argued before the Supreme Court this week, on the issue of whether takings for economic development purposes satisfy the constitutional requirement of "public use."

Perhaps that firm doesn't appeal many cases

This post links to a story about how a West Virginia Supreme Court justice was in a minor car wreck, and at the scene, a woman came up to him and asked if he was hurt and gave him the name and phone number of her law firm.

James J, Kilpatrick's take on the Virginia fornication case

Here is a column from former Richmonder James J. Kilpatrick on the Virginia fornication case.

I will forever associate Kilpatrick, who used to debate Shana Alexander on 60 Minutes, with the Dan Aykroyd/Jane Curtin Point/Counterpoint segment on Saturday Night Live.

Legal reform group targets Virginia's UPL rules barring help with district court forms

Via David, a group called HALT is complaining that the Virginia State Bar is taking the wrong view on an issue of the unauthorized practice law, having to do with whether it is a violation for a social worker to help pro se claimants fill out the forms for Small Claims court. Their beef - the forms are too complicated.

The opinion - UPL 207 - is here.

There is a General District Court form for just about everything. I always thought that was a good thing - no need to figure out how to draft one of those, whatever it is, just find the form.

W.D. Va. statistics

Via this site, some statistics on the W.D. Va. for 2004:

Overall Filings - 1,966
Overall Terminations - 2,126
Overall Pending - 1,587
Number of Judgeships - 4
Per Judgeship Total Filings - 492
Per Judgeship Civil Filings - 373
Per Judgeship Criminal Filings - 99
Per Judgeship Pending Cases - 397
Per Judgeship Weighted Filings - 496
Per Judgeship Terminations - 532
Per Judgeship Trials Completed - 22
Median Times to Criminal Disposition - 9.1
Median Times to Civil Disposition - 9.7
Median Times to Civil Trial - 16.4
Number of Civil Cases Over 3 Years Old - 31
Percent of Civil Cases Over 3 Years Old - 2.8

Virginia Supreme Court rejects media appeal on cameras in courtroom

Tom Campbell of the Richmond paper wrote this story ("Rountree: VA high court refuses appeal," 2/19/05) about the Virginia Supreme Court's refusal to act on the appeal brought by the Richmond paper and others concerning limitations on cameras at an upcoming murder trial.

The article states that the Court considered the appeal on an expedited basis and denied the petition, finding no reversible error.

Circuit court records online viewed as a menace

Christina Nuchols of the Norfolk paper has this article ("She knows all about you and you and you," 2/19/05) about a privacy activist who works against online publication of Virginia circuit court records. She has a website, The Virginia Watchdog.

Western Virginia and the Violence Against Women Act

In this article ("Cases with links to Va. set national precedents," 2/20/05), Jen McCaffery of the Roanoke paper chronicles the precedent-setting cases out of the Western District of Virginia involving the Violence Against Women Act, including the Brzonkala case, in which ultimately the Supreme Court upheld Judge Kiser's ruling that parts of the Act were unconstitutional, and also federal criminal prosecutions brought under the Act.

The Roanoke paper jumps on the Gate City election

Sunday's Roanoke paper has this article ("Small-town election, big-time trouble," 2/20/05), this article ("Testimony appears to show violations of election law," 2/20/05), and this article ("Controversy likely won't affect Jerry Kilgore's campaign," 2/20/05) by Laurence Hammack on the Gate City town election, and subsequent litigations and investigations, citing Ms. Kilgore and Gerald Gray and Henry Keuling-Stout, among others. The special prosecutor, Joel Branscom, is quoted as saying a lot of Gate City people seemed to be out of town on that Election Day.

Professor Sabato is quoted as saying that he doesn't think the election dispute will have much effect on the campaign for governor. For one thing, "Ninety-five percent of Virginians have never heard of Gate City, and couldn't find Scott County on a map."

More on Judge Merhige

Here are the Washington Post's obituary, Bill Lohmann's column and his story in the Richmond paper, and this by Lea Setegn from the Richmond paper.

All worth reading.

Fish in a barrel?

The Washington Post reports here that the Fairfax County electoral board has fired the registrar of voters.

Under Virginia law, the electoral board has to be made up of a majority of members of the Governor's party. When the Governor's office changes parties, so do the electoral boards. The new boards sometimes want to rid themselves of the registrar hired by the old boards.

Since the groundbreaking cases out of the W.D. Va. in the 1980s, when it was determined that registrars are not patronage employees, see McConnell v. Adams, 829 F.2d 1319 (4th Cir. 1987), every registrar who has ever been fired or denied reappointment following a realignment has sued the electoral board and won. The plaintiffs in the original W.D. Va. cases included Ms. Kilgore, the registrar in Scott County. She won her job back, and ever since, so have all the rest who wanted reinstatement, in every case with which I am familiar, from every corner of the Commonwealth.

Ed Stout and Gerald Gray beat me in one of those cases, and I appealed, and the Fourth Circuit argument was held in Baltimore, during baseball season. So, the night before the argument, the lawyers went (separately) to Camden Yards (for a few innings), and after the argument, we ate together overlooking the Harbor. I'm still mad about that case, but I can't complain about the trip to Baltimore.

On the late Judge Merhige

A lawyer of my age and location knows of the great federal judges from Virginia during the 20th century mainly by reputation, history books, and old lawyer stories: among others, these include Judge Hoffman for whom the courthouse is named in Norfolk, Judge Bryan for whom the courthouse is named in Alexandria, Judge Dalton in Roanoke.

The Richmond paper reports here that Judge Robert Merhige died on Friday at age 86. The headline reads: "He was a giant of law," and he was. This story contains Judge Merhige reflections on school integration, 50 years after Brown. His most famous ruling was system-wide integration in the Richmond metro area, including Henrico County where he lived.

In 1992, Controversy in the courts: A biography of Judge Robert R. Merhige, Jr., by Ronald Bacigal, was published. Bending the Law : The Story of the Dalkon Shield Bankruptcy by Richard Sobol is one of several books detailing Judge Merhige's role in the A.H. Robins bankruptcy case.

I'm unable to write in this space what could or should be written about him, and so I'll resort to my usual nonsense instead. Judge Merhige was the speaker at my law school graduation in Williamsburg in 1989. He told the story that he applied to law school at William & Mary but had to withdraw once he discovered that it was not located in Richmond, where he had a job he needed to pay his way through school. So, he was a William & Mary law student for one day, after which he enrolled at T.C. Williams.

A few months ago, I sent an e-mail to Judge Merhige, written in my usual absurd manner, and laughed aloud at his bemused reply.

Mark Sadd out as federal judge candidate in WV

Via this WV Law Dog post, according to this report in the Charleston Gazette (registration required), attorney Mark Sadd is no longer in the running for the S.D. W.Va. judgeship made vacant by the death of Judge Charles Haden.

Evidently, some Republicans are wanting somebody else. One Republican is quoted as saying: "He does not have the temperament, the character or the background. He’s a real-estate lawyer." Ouch, what's up with that?

Mark Sadd and I both graduated in the 1986 class at U.Va., where among other things he was one of the big cheeses and I was one of the hangers-on at the now-defunct University Journal.

W&L symposium on unpublished opinions

This press release describes an upcoming symposium at Washington & Lee on the controversy over the use of unpublished opinions.

As I've said before, my view is, lawyers should be free to cite whatever works - except foreign case law on U.S. constitutional issues.

Deja vu, another retaliation claim goes forward

In Smith v. Shenandoah Valley Juvenile Detention Home Commission, Judge Conrad granted summary judgment on the plaintiff's race and gender discrimination claims, but denied the defendant's motion on the retaliation claim.

Something similar happened in a different case before Judge Jones a couple of weeks ago. Retaliation claims might be the easiest kind to get to the jury when something bad happens soon after the protected conduct of the plaintiff, whatever it is.

Disqualification of counsel from representing multiple debtors affirmed

In Tri-State Leasing v. U.S. Trustee, Chief Judge Jones affirmed a Bankruptcy Court order that required the disqualification of counsel from representing more than one of a related group of debtors that owed each other money.

Sounds like a full time job

The Roanoke Slant tackles the task of keeping the Roanoke paper honest.

Chief Judge Jones goes low

In U.S. v. Mullins, Chief Judge Jones imposed a sentence below the "advisory sentencing guideline range" in a case where the defendant was charged with possessing an illegal assault weapon about a month before the statutory ban expired.

To "go low" is a good thing, at least on the PGA Tour.

Alabama vs. Virginia in freakiness contest

Via Timothy Sandefur, This post compares and contrasts the nuttiness between Alabama and Virginia, and says nothing about either Bear Bryant or Thomas Jefferson.

I can vouch for No. 3

At No. 3 among The 10 Most Dangerous Foods to Eat While Driving is TACOS. The scariest drive of my life was the night I picked up a mess of tacos at a Happy Mart/Taco Bell outside of Pikeville, KY, while headed for home down U.S. 23 before they straightened out the road at Jenkins. (If you've been there, you know what I'm talking about.)

Not on the list, three others I've managed a few times between Bristol and Abingdon are pizza, soup, and Chinese food (specifically, beef with broccoli). This should make you all feel better about driving northbound in that area on the interstate between 8:00 pm and 10:00 pm most any weekday, the usual hours of my exodus.

Thanks to David for turning me on to this link.

Norfolk paper thinks Atkins deserves consideration for making the U.S. reports

The Norfolk paper opines here that convicted murderer Daryl Atkins ought to get some slack from the Commonwealth for winning his Supreme Court case, even if he isn't mentally retarded.

Richmond newsies appeal camera restrictions in murder case

The Richmond paper has this story on the appeal noted by it and two tv stations of the rulings by the Henrico County Circuit Court judge to restricting camera access to a murder trial scheduled for next week.

Frank is dead

Here is the story of the Virginia kid who named his brain tumor "Frank" and who is now cancer-free.

Another Coalfield story on the 30th circuit judgeship

The Coalfield Progress reports that Tammy McElyea has the inside track on becoming the new circuit court judge for the 30th Circuit.

Notwithstanding the few articles in the Coalfield Progress, it seems to me like this is a historic year - the General Assembly is going to appoint new circuit court judges for the 28th, 29th, and 30th circuits at the same session - and nobody but the lawyers and judges are paying much attention. How many times has that happened, so many Southwest Virginia circuit court judges appointed at one time?

Trying to get more money for court-appointed counsel

The Norfolk paper has this editorial in support of the efforts of Del. McDonnell, among others, to try to get a pay raise for the lawyers who take on court-appointed criminal clients in Virginia's courts.

Since I'm a lawyer, I think this is a very important issue - funding for public defenders and court-appointed counsel. There ought to be a requirement that every time any member of the General Assembly introduces a bill that would change any part of Titles 18.2 (Crimes) or 19.2 (Criminal Procedure), which they do all the time, the money for lawyers for the indigent defendants will go up by 1%.

Ruff times

The old dog is sick. 

I know it's a tough old world, but one thing that's no good at all is when the dog makes a mess in the house, slips and falls in it, and because of her bad legs, can't raise herself up off the wet floor and has to lie in it until someone comes along and helps her.

Chrissy the dog is a former death row inmate whose sentence was commuted to house arrest when we brought her home from the Washington County animal shelter in March 1991 - so she is 14 years old. It has been retold here before, and not for the last time, that years ago, Judge Jones and his wife saw us on the street with the dog and he said she is a cute puppy. Even though this was before he was judge, I consider his opinion in this instance a matter of res judicata.

We went to see the vet this morning. The doctor prescribed for the dog a course of Metronidazole. The last time the dog took this medicine, I was taking it, too, for Crohn's disease. It worked for the dog but not for me. On the topic of Crohn's, while the dog has the bad belly, I've been the night nurse. My wife says this should be no imposition, since I'm generally up and down all night anyway, which is true and has been for these many years.

On inundation and gentility and medical malpractice

In this story, mostly about the pending medical malpractice reform bills, the word choices caught my eye.

For one thing, it says of Winchester and surrounding parts that "the area is inundated with frivolous claims", but goes on to say there are not many of them.

Also, it quotes a local lawyer as saying "the practice of law in my region is much more gentile." I think the lawyers in Southwest Virginia are mostly gentile, and in addition some of the Gentiles are genteel.

On the selection of Virginia judges

The Richmond paper has this editorial that says the Republicans have yet to come through on promises to do better than the Democrats in rationalizing the system by which the General Assembly selects judges.

The editorial says, among other things:

"The courts may offer a rare example in which Washington does better than Virginia. The Commonwealth ought to consider adopting an approach similar to the one used by the federal government. The Governor could nominate judicial candidates who would be subject to legislative confirmation. Or Virginia could create a merit system that would authorize independent commissions, whose members would represent not just the parties and an often arrogant bar but other interests having a stake in the justice system, to vet candidates and make formal recommendations to the Assembly."

William & Mary Law will have symposium on displays of the Ten Commandments

According to this press release, William & Mary Law School will host a symposium on public displays of the Ten Commandments, and the headliners on the panel are Nadine Strossen and Jay Sekulow.

Holy catbirds, that's a made-for-TV clash of the titans right there, or is it? If he's not well-prepared (and perhaps he always is), Mr. Sekulow may need to stash some extra Twinkies in his briefcase, because Ms. Strossen will eat his lunch.

Virginia argues that the Establishment Clause does not wholly constrain the states?

In a Findlaw column titled Virginia's Bizarre Claim to the Supreme Court Asserting that the Establishment Clause Does Not Constrain the States, the author claims that in an amicus brief filed by the Commonwealth involving the Religious Land Use and Institutionalized Persons Act, Virginia takes the position that "the states should have broad latitude to institute religious programming in the state prisons, without federal government intervention like RLUIPA," and in support of this view, Virginia claims that "the Establishment Clause does not wholly apply to the states," citing the dissenting opinion by Justice Thomas in the Pledge of Allegiance case.

Why not Patrick Henry, George Washington, or Robert E. Lee?

The Richmond paper reports here that among the candidates to become judges in this session of the General Assembly are Virginia lawyers named John Marshall and George Mason.

Apparently, although a Patrick Henry, a George Washington, and a Robert E. Lee are listed in Martindale as Virginia lawyers, I have not read that any of them are candidates for judgeships this year.

Bluefield paper takes a stand against litigation frivolity

Here the Bluefield paper editorializes against frivolous lawsuits in West Virginia.

On omitted names from newspapers

The Kingsport paper has this piece which lauds a sports reporter for leaving out the name of the school kid who committed the foul that cost the big Kingsport high school a basketball game.

By contrast, the Bristol paper wants to print every detail about an accused school teacher. Today's editorial does not acknowledge that the rights of the accused (and the accuser) are affected by the kind of publicity which the newspaper has chosen to give this case. I suspect that the newspaper has only itself to blame for the juvenile court's decision to close the preliminary hearing to the media.

More on the verb to lynch

A Lynchburg lawyer writes that he is "reading James Elson's recent history of Lynchburg, Lynchburg, Virginia: The First Two Hundred Years, 1786-1986. The book contains an interesting discussion of the origin of the term 'lynch law' and its verbal form 'to lynch.'

According to Elson, there are several candidates, 'the best-documented historical figure for giving his name to 'lynch law' is undoubtedly Colonel Charles Lynch.' Charles Lynch was the older brother of John Lynch, the founder of Lynchburg and the person for whom the city is named.

Colonel Lynch was not a judge. Rather, he represented Bedford County in the House of Burgesses and was a colonel in the Bedford militia. As part of his duties with the militia, he was responsible for 'suppressing agitation by local Tories.' This he accomplished by holding 'extra-legal hearings' at his estate in present-day Altavista. Tories were tied to a tree and given thirty-nine lashes. A Tory could stop the lashings by proclaiming 'Liberty forever!' While there were rumblings that Colonel Lynch may have presided over some hangings, there exists no such historical evidence.

In 1782, the Virginia legislature passed a law indemnifying Colonel Lynch and others for their actions. The law stated that Colonel Lynch's actions 'were not strictly warranted by law, although justifiable from the imminence of the danger.'"

The dance of legislation

Virginia Isn't for Bullies, a blog by the dad who is supporting the anti-bullying bills, makes me think of a book I read in college, The Dance of Legislation - which I understand was updated in 2000, thirty years after it was first published.

More from the Post on the Virginia justice system

The Washington Post has this editorial in its continuing series on the Virginia criminal justice system, highlighting the Senate bill that would provide relief from missing some appeal deadlines.

First one out with the D word

Nothing I've read lately bodes well for the Baril for AG campaign. Brandon posted a rumor that Baril was paying his "volunteers." Today, the AFP says here that the Baril camp is daring the McConnell camp to a series of debates.

From everything I've ever read or heard, the candidate pressing for the debates is the one who thinks he's behind, and is hoping for the big inning, the deep pass, the halfcourt buzzer beater, and the late round knockout, to overcome the other candidate's lead.

Also, I don't understand how anybody from a really big Richmond law firm could make the claim to be more qualified as the next "people's lawyer" (i.e., the truer populist?) and somehow less of an "insider" than a small firm lawyer from Virginia Beach (who went to Regent). Am I the only one who thinks that is really strange? The Williams Mullen firm just got all of this publicity from Jerry Kilgore joining over there, and some its partners are recognized as the foremost lobbyists, and yet a Williams Mullen partner is running for statewide office as an "outsider." This campaign theme strikes me as wrongheaded, not only because it is contradicted by this background of facts but also because it seems like a waste. If I was a Williams Mullen partner running for Attorney General, I just might say this: that the law firm is outstanding in all that it does and I'm proud of its work and my goal if elected is for the AG's office to do for Virginia what Williams Mullen does for its clients.

Perhaps I am being both naive and dishonest - probably the first thing I'd do if I ran for statewide office would be to go out and buy some cowboy boots.

Former judge Askew sues her accuser and the Newport News paper

The AP reports here that former Circuit Court judge Verbena Askew has sued the woman who accused her of something or other and also the Daily Press for reporting something or other about her - read the article and don't look for the details here.

Actually, it says that she is claiming breach of confidentiality by the newspaper. Holy catbirds, can there be such a claim, and on what theory? Breach of contract?

Virginia Supreme Court justices in Abingdon for BLI

As shown here, Chief Justice Hassell and Justice Kinser will be among those on the program at the upcoming Bar Leadership Institute in Abingdon on March 18.

Another segment will be on the topic of "What is the Virginia State Bar Doing for You," featuring, among others, the last president - Jeannie Dahnk from Fredericksburg, the current president - David Bobzien from Fairfax County, the next president - Phil Anderson from Roanoke, and Bill Bradshaw, a member of Bar Council from Big Stone Gap. Apparently, they've got 6 speakers to fill 30 minutes answering the question.

Virginia Supreme Court Review by telephone

Here is the scoop on an upcoming telephone seminar from VTLA on new stuff from the Virginia Supreme Court.

Still my favorite Tech student

The Washington Post has this update on Rayna Dubose at Virginia Tech.

I've posted every Rayna Dubose article I've seen since this blog began.

Dean Reveley and Gene Nichol among W&M finalists

The Virginia Gazette reports here that the law school's Dean, Taylor Reveley, and a one-time law school professor are among the finalists to become the president of the College of William & Mary. Gene Nichol was among the law faculty back when I started in Williamsburg in 1986, now he is at North Carolina. Both Dean Reveley and Nichol were at the Fourth Circuit judicial conference two years ago, talking about the woes of their lot as law school deans.

Capital offense

Via Ray, this AL& P post describes an opinion in which, among other things, the Court zinged the Government for failure to capitalize the word "Court:"

"Judge Gilmore further used this opportunity to excoriate the Government for its lack of decorum, and also for its incorrect capitalization as mandated by The Bluebook. See, e.g., Dec. 29, 2004, Order at 5 n.1 (“In addition to capitalizing ‘Court’ when naming any court in full or when referring to the U.S. Supreme Court, practitioners should also capitalize ‘Court’ in a court document when referring to the court that will be receiving that document.” The Bluebook: A Uniform System of Citation P. 6(a) at 17 (Columbia Law Review Ass’n et al. eds., 17th ed. 2000)”)."

Best city sticker ever

Via the Norfolk paper. 

Underpants bill gets dropped

The AP reports here that a Senate committee did in the droopy drawers bill passed by the House.

The article did not mention whether the Senators were concerned that a ban on exposed drawers would, as suggested by many, cause more Virginians to go without.

More on the underwear law

More fun poked at the House of Delegates:

Yer drawls are showin!

Cover up Virginians

Crackdown on Underwear in Virginia

Sartorial Elegance

Bad Pants

Under It All

"bustin' a sag"

Laws of Fashion

Caught With Your Pants Down

Moon Over Virginia

Baggy rude and illegal?

Baggy Pants Illegal?

Virginia attorney and politician Gil Davis fights for religious freedom

This press release proves it.

Judge Combs retiring from General District Court in Tazewell

This post from the excellent Southwest Virginia news site says that Tazewell County General District Court Judge Fred Combs has announced that he will retire as of June 30, 2005.

The article says: "Jack S. (Chip), Hurley Jr., a Bluefield attorney, Henry Barringer from Tazewell, Karel Ryan of Tazewell and Richlands attorneys Shannon Cooke and Shea Cook are among the candidates."