I just finished reading Obama: From Promise to Power, by David Mendell, the reporter (and blogger), and started That Man: An Insider's Portrait of Franklin D. Roosevelt, by Justice Robert H. Jackson and edited by John Barrett, the fellow who puts out the Jackson e-mail list.
I expected to see and saw that one of Obama's patrons was Abner Mikva, who was referenced in the Clarence Thomas book as the least favorite of his colleagues from his days on the D.C. Circuit, and whose representation by John Tucker is described in Tucker's book, Trial and Error: The Education of a Courtroom Lawyer. Mikva was Democratic Congressman, who was gerrymandered out of office but not before one or two recounts, in which he had Tucker and others to represent him. Also, he was counsel to the White House under President Clinton, after he retired from the D.C. Circuit. The Mendell book about Obama fits well with Tucker's account of Chicago politics. It convinced me that Obama is somewhat like all the rest, inevitably so, and makes me wonder that sparks will fly soon when Clinton and/or McCain lights into him - if they ever do.
I thought the Mendell book was very entertaining, much of it sort of a "Fear and Loathing" tale of Obama's Congressional and Senatorial campaigns, and "The Plan" that followed, including his "congressional" trip to Africa in 2006, up to the announcement of his campaign for president - the stuff that Obama did that drove his campaign pros crazy.
At pages 54 and 55 of Jackson book can be found this story about the nominations of Floyd Roberts from Bristol, then Armistead Dobie, to the new position on the U.S. District Court for the Western District of Virginia:
"The President challenged and tested this practice [of senatorial courtesy] in Virginia, by making a district judge appointment in the summer of 1938 without consulting Senators Carter Glass and Harry Byrd, but I think after consultation with Governor James H. Price, who was at odds with the senators. That man, whose name was Floyd Roberts, was admittedly a competent man to hold the position, but because of the failure of the President to consult them, Senators Glass and Byrd opposed the confirmation. It became very plain that the President could not get the man confirmed. The President was plainly defeated. It was a stalemate. He would not withdraw the nomination. The post was vacant.
One day we were down on the President's yacht over the weekend, fishing and relaxing. The President said, 'I've got a job for you, Bob, and for 'Pa' Watson. I want you to go down to Charlottesville and see if you can't get Armistead M. Dobie, the Dean of the University of Virginia Law School, to accept the appointment as district judge. I think if I send his name to the Senate, the Senators from Virginia will not dare turn him down.' He thought Glass and Byrd would support Dobie and thereby break the deadlock without loss of face to anybody.
It was plain that the contest at that point had become one of personal prestige, and the President wanted to put one over that they would not dare resist. This was when I was Solicitor General, not Attorney General. He was apparently handling the matter quite independently of Attorney General Murphy. He said that there was a vacancy coming up on the Fourth Circuit Court of Appeals, and that if Dobie accepted the appointment to the district court, we could say that the President would feel that he should be promoted to the Court of Appeals when the vacancy occurred.
So 'Pa' Watson and I took a White House car and made an appointment to see Dean Dobie at the Farmington Country Club in Charlottesville. We sailed forth. When we got in the vicinity, 'Pa' Watson in his genial southern way, said, 'Bob, you handle the heavy thinking in this, and I'll go out and get a bottle of bourbon.' I talked with Dean Dobie while 'Pa' took a little trip. When 'Pa' came back, I introduced him to 'Judge' Dobie. The Dean had agreed to accept the appointment. About ten o'clock, after we had dinner and duly induced the Dean to accept, we telephoned the President that we had met the enemy and he was ours. The President immediately sent his name to the Senate, and there was a prompt announcement from Senators Byrd and Glass that they would vote for his confirmation."
I love that story. General Edwin "Pa" Watson was Roosevelt's military aide and de facto chief-of-staff, who lived at Kenwood outside Charlottesville, and died on the return from Yalta.
Thursday, February 14, 2008
Wednesday, February 13, 2008
Up for argument later this month
One case is LEVISA COAL COMPANY v. CONSOLIDATION COAL COMPANY, out of Buchanan County, where the assignments of error are these:
1. The trial court’s ruling contradicts the holding in Clayborn v. Camilla Red Ash Coal Co., and other cases, which provides that a coal owner like Levisa owns the coal and appurtenant rights necessary to access and mine its coal, but not unrelated rights such as the right to store mine water from another’s mine.
2. The trial court erred in ruling that the 1956 Lease permits Consolidation to dump contaminated mine water into VP3 because Consolidation was not a party to the lease; Consolidation did not acquire rights under the lease; the lease itself prohibits assignment to another party; Consolidation and Island Creek are separate and distinct corporations; the 1956 Lease does not permit any party to dump contaminated mine water into VP3; and Levisa does not have the right under common law or the lease to grant anyone the right to dump contaminated mine water into VP3.
3. If the trial court found that Consolidation enjoys rights under the 1956 lease by virtue of agreements with Island Creek, that finding is erroneous because Island Creek could not, through contracts with third parties, increase its rights under the 1956 Lease; the purported agreements do not address water storage in the VP3 mine; those agreements are invalid, sham agreements between affiliated companies designed solely to circumvent the mineral owners’ rights; and Levisa is not a party to such agreements.
4. In denying Levisa’s request for injunctive relief, the trial court impermissibly relied upon matters not in evidence, including statements made by counsel for Consolidation in its opening statement and the trial court’s personal observations and opinions.
5. If the trial court found that Island Creek co-operates the Buchanan Mine with Consolidation and/or is discharging water into the VP3 mine, those findings are contrary to the evidence, which showed that Consolidation is the sole operator of the Buchanan Mine; Consolidation is the entity discharging the water; and Island Creek has no mining or other operations in Buchanan County, Virginia.
6. The trial court failed to consider and balance the parties’ equities by excluding evidence of the profitability of Consolidation’s Buchanan Mine.
7. The trial court erroneously treated Consolidation and Island Creek as the same entity with identical property and contractual rights where, according to the evidence, the defendant’s pleadings, and Virginia law, the two companies are separate and distinct entities.
8. The trial court erred in holding that Levisa requested the court to interpret the 1956 Lease; to the contrary, Consolidation raised the 1956 Lease provisions in support of its alleged right to dump water into the VP3 mine.
9. In ruling on Consolidation’s motion to strike at the close of Levisa’s evidence, the trial court impermissibly failed to view the evidence, and the inferences from that evidence, in the light most favorable to Levisa, the non-moving party.
10. The trial court erred in refusing to accept the affidavit of Timothy L. Hower into evidence because Virginia Code § 8.01-628 allows the court to consider affidavits on petitions for temporary injunctions and Mr. Hower had to be in Germany on the date of the hearing; and the trial court erred in refusing testimony about Consolidation’s profits from the Buchanan mine.
11. The trial court erred in denying injunctive relief by holding that Levisa has a full and adequate remedy at law on the basis that Levisa will be able to file suit when the coal becomes profitable to mine where (1) Levisa could be time-barred if suit is not filed within the five (5) year statute of limitations; (2) Levisa will have to prosecute a multiplicity of suits due to repeated and continuing harm from dumped mine water; (3) Virginia law provides for injunctive relief even if a plaintiff’s damages are nominal or speculative; and (4) any remedy Levisa has at law is not adequate to compensate Levisa and protect its property rights. Moreover, the court erred in imposing a requirement of “no adequate remedy at law” under the facts and law applicable to this case.
12. The trial court erred in denying injunctive relief by holding that Levisa is not suffering immediate and irreparable harm because: (1) the evidence showed that Levisa’s coal estate is being damaged; (2) the proffered affidavit of Timothy L. Hower showed that Levisa’s coalbed methane gas is being lost; (3) Consolidation is presently pumping mine water into VP3; (4) the amount of damages to Levisa’s coal cannot be accurately ascertained at this time; (5) Levisa cannot be fully and adequately compensated for its damages at law; and (6) Consolidation has destroyed Levisa’s property right to enter the passageways to inspect its coal. Moreover, the court erred in imposing a standard of irreparable harm, not recognized by this court.
1. The trial court’s ruling contradicts the holding in Clayborn v. Camilla Red Ash Coal Co., and other cases, which provides that a coal owner like Levisa owns the coal and appurtenant rights necessary to access and mine its coal, but not unrelated rights such as the right to store mine water from another’s mine.
2. The trial court erred in ruling that the 1956 Lease permits Consolidation to dump contaminated mine water into VP3 because Consolidation was not a party to the lease; Consolidation did not acquire rights under the lease; the lease itself prohibits assignment to another party; Consolidation and Island Creek are separate and distinct corporations; the 1956 Lease does not permit any party to dump contaminated mine water into VP3; and Levisa does not have the right under common law or the lease to grant anyone the right to dump contaminated mine water into VP3.
3. If the trial court found that Consolidation enjoys rights under the 1956 lease by virtue of agreements with Island Creek, that finding is erroneous because Island Creek could not, through contracts with third parties, increase its rights under the 1956 Lease; the purported agreements do not address water storage in the VP3 mine; those agreements are invalid, sham agreements between affiliated companies designed solely to circumvent the mineral owners’ rights; and Levisa is not a party to such agreements.
4. In denying Levisa’s request for injunctive relief, the trial court impermissibly relied upon matters not in evidence, including statements made by counsel for Consolidation in its opening statement and the trial court’s personal observations and opinions.
5. If the trial court found that Island Creek co-operates the Buchanan Mine with Consolidation and/or is discharging water into the VP3 mine, those findings are contrary to the evidence, which showed that Consolidation is the sole operator of the Buchanan Mine; Consolidation is the entity discharging the water; and Island Creek has no mining or other operations in Buchanan County, Virginia.
6. The trial court failed to consider and balance the parties’ equities by excluding evidence of the profitability of Consolidation’s Buchanan Mine.
7. The trial court erroneously treated Consolidation and Island Creek as the same entity with identical property and contractual rights where, according to the evidence, the defendant’s pleadings, and Virginia law, the two companies are separate and distinct entities.
8. The trial court erred in holding that Levisa requested the court to interpret the 1956 Lease; to the contrary, Consolidation raised the 1956 Lease provisions in support of its alleged right to dump water into the VP3 mine.
9. In ruling on Consolidation’s motion to strike at the close of Levisa’s evidence, the trial court impermissibly failed to view the evidence, and the inferences from that evidence, in the light most favorable to Levisa, the non-moving party.
10. The trial court erred in refusing to accept the affidavit of Timothy L. Hower into evidence because Virginia Code § 8.01-628 allows the court to consider affidavits on petitions for temporary injunctions and Mr. Hower had to be in Germany on the date of the hearing; and the trial court erred in refusing testimony about Consolidation’s profits from the Buchanan mine.
11. The trial court erred in denying injunctive relief by holding that Levisa has a full and adequate remedy at law on the basis that Levisa will be able to file suit when the coal becomes profitable to mine where (1) Levisa could be time-barred if suit is not filed within the five (5) year statute of limitations; (2) Levisa will have to prosecute a multiplicity of suits due to repeated and continuing harm from dumped mine water; (3) Virginia law provides for injunctive relief even if a plaintiff’s damages are nominal or speculative; and (4) any remedy Levisa has at law is not adequate to compensate Levisa and protect its property rights. Moreover, the court erred in imposing a requirement of “no adequate remedy at law” under the facts and law applicable to this case.
12. The trial court erred in denying injunctive relief by holding that Levisa is not suffering immediate and irreparable harm because: (1) the evidence showed that Levisa’s coal estate is being damaged; (2) the proffered affidavit of Timothy L. Hower showed that Levisa’s coalbed methane gas is being lost; (3) Consolidation is presently pumping mine water into VP3; (4) the amount of damages to Levisa’s coal cannot be accurately ascertained at this time; (5) Levisa cannot be fully and adequately compensated for its damages at law; and (6) Consolidation has destroyed Levisa’s property right to enter the passageways to inspect its coal. Moreover, the court erred in imposing a standard of irreparable harm, not recognized by this court.
Frequent filer gets sanctioned by Judge Moon
In Thurston v. Melton, Judge Moon of the W.D. Va. ordered Rule 11 sanctions against a pro se litigant, noting that the same plaintiff had previously filed 25 lawsuits, including 12 raising the same claims as in this case. The Court imposed sanctions of $500 and entered a pre-filing injunction against the plaintiff with respect to future cases.
Another methadone clinic zoning case
In A Helping Hand, LLC, v. Baltimore County, the Fourth Circuit in an opinion by Judge Motz, joined by Judge Duncan and District Judge Brinkema, held that a methadone treatment clinic that was the target of a zoning ordinance to bump it out of its present location could have a claim under the ADA, but was not entitled to judgment as a matter of law, and the judgment in its favor on its substantive due process claim would be affirmed.
One part that freaked me out was this: "it is well established that community views may be attributed to government bodies when the government acts in response to these views. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985); Marks v. City of Chesapeake, 883 F.2d 308, 311-12 (4th Cir. 1989) (citing numerous cases)."
So, the risk-adverse government body will not allow its actions to be tainted by receiving the views of "the community."
One part that freaked me out was this: "it is well established that community views may be attributed to government bodies when the government acts in response to these views. See, e.g., City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 448 (1985); Marks v. City of Chesapeake, 883 F.2d 308, 311-12 (4th Cir. 1989) (citing numerous cases)."
So, the risk-adverse government body will not allow its actions to be tainted by receiving the views of "the community."
Tuesday, February 12, 2008
Good riddance
Gene Nichol got the jump on the non-renewal of his employment and quit as president of the College of William & Mary, issuing this statement.
His self-righteous statement makes the case against himself - his regime will be remembered for the arrogance, intolerance, and petulance. He has acted foolishly, and come to a fool's end.
I liked him well enough back in my law school days, but he has made a hash of it as president of the College.
His self-righteous statement makes the case against himself - his regime will be remembered for the arrogance, intolerance, and petulance. He has acted foolishly, and come to a fool's end.
I liked him well enough back in my law school days, but he has made a hash of it as president of the College.
Monday, February 11, 2008
Ford's effective limitation on consequential damages means no federal jurisdiction for truck claim under $50,000
In Burtt v. Ford Motor Company, Senior Judge Kiser of the W.D. Va. granted the defendant's motion to dismiss, concluding that the plaintiff's claimed consequential damages were not recoverable and could not be counted towards the jurisdictional amount for a claim under the Magnuson-Moss Warranty Act.
Friday, February 08, 2008
Wow, that's lame
The Post fingers the Republicans for a show-down over the appointments of Justice Goodwyn and Judge Millette, both of whom were given interim appointments by Governor Kaine.
There's a quote in there where a Republican legislator says this: "We believe that we should have people that are philosophically associated with us who are judges." I would like to philosophically disassociate myself from his remarks - I don't understand Goodwyn or Millette to be particularly tuned into the Governor or either side in the legislature.
Back when Roberts and Alito were making their way up, I heard a pundit say "there's something to be said for hyperqualification." If merit counts, these were pretty fair choices by the Governor, and they ought to get to keep their jobs, and let the politicians dicker over the rest.
And, if that means no seat on the SCC for Barnie Day, I expect he can handle it.
There's a quote in there where a Republican legislator says this: "We believe that we should have people that are philosophically associated with us who are judges." I would like to philosophically disassociate myself from his remarks - I don't understand Goodwyn or Millette to be particularly tuned into the Governor or either side in the legislature.
Back when Roberts and Alito were making their way up, I heard a pundit say "there's something to be said for hyperqualification." If merit counts, these were pretty fair choices by the Governor, and they ought to get to keep their jobs, and let the politicians dicker over the rest.
And, if that means no seat on the SCC for Barnie Day, I expect he can handle it.
On Judge McGrath
Rocktown Weekly has this profile of retiring Circuit Court Judge John McGrath, from the circuit that includes Harrisonburg and Luray.
On the latest bar-passage rate proposal before the ABA
Here it is, and here is a story from ABA Journal.
The standard is this:
"A law school’s bar passage rate shall be sufficient, for purposes of Standard 301(a), if the school demonstrates that it meets any one of the following tests:
1) That for students who graduated from the law school within the five most recently completed calendar years:
(a) 75 percent or more of these graduates who sat for the bar passed a bar examination, or
(b) in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.
In demonstrating compliance under sections (1)(a) and (b), the school must report bar passage results from as many jurisdictions as necessary to account for at least 70% of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency.
2) That in three or more of the five most recently completed calendar years, the school’s annual first-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average firsttime bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdictions.
In demonstrating compliance under section (2), the school must report first-time bar passage data from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. When more than one jurisdiction is reported, the weighted average of the results in each of the reported jurisdictions shall be used to determine compliance.
The standard is this:
"A law school’s bar passage rate shall be sufficient, for purposes of Standard 301(a), if the school demonstrates that it meets any one of the following tests:
1) That for students who graduated from the law school within the five most recently completed calendar years:
(a) 75 percent or more of these graduates who sat for the bar passed a bar examination, or
(b) in at least three of these calendar years, 75 percent of the students graduating in those years and sitting for the bar have passed a bar examination.
In demonstrating compliance under sections (1)(a) and (b), the school must report bar passage results from as many jurisdictions as necessary to account for at least 70% of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency.
2) That in three or more of the five most recently completed calendar years, the school’s annual first-time bar passage rate in the jurisdictions reported by the school is no more than 15 points below the average firsttime bar passage rates for graduates of ABA-approved law schools taking the bar examination in these same jurisdictions.
In demonstrating compliance under section (2), the school must report first-time bar passage data from as many jurisdictions as necessary to account for at least 70 percent of its graduates each year, starting with the jurisdiction in which the highest number of graduates took the bar exam and proceeding in descending order of frequency. When more than one jurisdiction is reported, the weighted average of the results in each of the reported jurisdictions shall be used to determine compliance.
On next week's to-do list
Put me down as joining up with U.S. Rep. Rick Boucher; Lisa Collis, wife of former Gov. Mark Warner; Norfolk Mayor Paul Fraim; Gov. Timothy M. Kaine; State Sen. Louise Lucas, D-Portsmouth; U.S. Rep. Bobby Scott; and former Gov. Douglas Wilder, according to this list.
With the Republican race over, I might as well take advantage of what might be my only chance to join the 7 million or so Americans who have already voted against Hillary Clinton this year.
With the Republican race over, I might as well take advantage of what might be my only chance to join the 7 million or so Americans who have already voted against Hillary Clinton this year.
On the retirement of a Roanoke district court judge
The Roanoke paper has this fine account of Judge Julian Raney, which says in part:
"Raney's slender frame, bookish features and reserved manner belie a man who was mentioned in Sports Illustrated as the leading scorer in the Eastern Rugby Union while he played for the University of Virginia, and who overcame a fear of heights to train as a paratrooper before his tour of duty in Vietnam — which he volunteered for despite misgivings about the war."
"Raney's slender frame, bookish features and reserved manner belie a man who was mentioned in Sports Illustrated as the leading scorer in the Eastern Rugby Union while he played for the University of Virginia, and who overcame a fear of heights to train as a paratrooper before his tour of duty in Vietnam — which he volunteered for despite misgivings about the war."
Electronic filing coming to the Fourth Circuit
In the e-mail bin is this notice of proposed administrative order and this notice of proposed rule amendments, relating to electronic filing in the Fourth Circuit.
Tuesday, February 05, 2008
On Judge Tower
Via VLW, the Norfolk paper says here that Judge Winship Tower is one of the candidates for a Circuit Court judgeship in Virginia Beach.
Add her to the list of those I'm for or against her, whichever way helps. (Hey, it worked for Chad Dotson.)
The other contenders sound like a strong bunch. According to Chief Justice Roberts, it takes high salaries to get the best people, so they must be overpaying the judges at that end of the state, to the detriment of the judicial prospects of the undeserving poor among lawyers.
Add her to the list of those I'm for or against her, whichever way helps. (Hey, it worked for Chad Dotson.)
The other contenders sound like a strong bunch. According to Chief Justice Roberts, it takes high salaries to get the best people, so they must be overpaying the judges at that end of the state, to the detriment of the judicial prospects of the undeserving poor among lawyers.
Twice as nice
Worth reading
Just lately I've read My Grandfather's Son: A Memoir by Clarence Thomas, and West from Appomattox: The Reconstruction of America after the Civil War, by Heather Cox Richardson.
I enjoyed the account of the many struggles and occasional joys of Justice Thomas's life, and I liked the history in the Richardson book, not so much the sociology. One of the cases she cited, of which I was previously unaware, was Minor v. Happersett, 88 U.S. 162 (1874), in which the Supreme Court held against some woman named Minor, represented by a lawyer named Minor, that women are citizens, but have no constitutional right to vote.
The Court reasoned: "Certainly, if the courts can consider any question settled, this is one. For nearly ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. If uniform practice long continued can settle the construction of so important an instrument as the Constitution of the United States confessedly is, most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be."
I enjoyed the account of the many struggles and occasional joys of Justice Thomas's life, and I liked the history in the Richardson book, not so much the sociology. One of the cases she cited, of which I was previously unaware, was Minor v. Happersett, 88 U.S. 162 (1874), in which the Supreme Court held against some woman named Minor, represented by a lawyer named Minor, that women are citizens, but have no constitutional right to vote.
The Court reasoned: "Certainly, if the courts can consider any question settled, this is one. For nearly ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessarily confer the right of suffrage. If uniform practice long continued can settle the construction of so important an instrument as the Constitution of the United States confessedly is, most certainly it has been done here. Our province is to decide what the law is, not to declare what it should be."
Lawyers commenting on Judge Farmer
The Bristol paper had an article by the usually reliable Kathy Still on Monday, evidently not available online (but who knows? you can't find anything on that lousy website), quoting Southwest Virginia lawyers Jay Steele and Hugh O'Donnell on the merits of Judge John Farmer's performance as juvenile and domestic relations judge.
Mr. Steele's take was that Judge Farmer should never have been made a judge, but in his years on the bench had grown into the job and should not now be replaced - sort of an insult for everyone involved, then and now.
I had a federal court case with Judge Farmer, not long before he went on the bench, and I didn't like him, and complained to Roy Jessee who laughed and said he could see how there might be some friction between our differing ways of doing things, but then like the Buddha advised me that there are a lot of ways of being a lawyer and if I was smart I would watch the ones like Farmer who'd had some success and maybe learn something, notwithstanding our differences. Duly enlightened, I developed an appreciation for Farmer and told him so the last time we met.
Mr. Steele's take was that Judge Farmer should never have been made a judge, but in his years on the bench had grown into the job and should not now be replaced - sort of an insult for everyone involved, then and now.
I had a federal court case with Judge Farmer, not long before he went on the bench, and I didn't like him, and complained to Roy Jessee who laughed and said he could see how there might be some friction between our differing ways of doing things, but then like the Buddha advised me that there are a lot of ways of being a lawyer and if I was smart I would watch the ones like Farmer who'd had some success and maybe learn something, notwithstanding our differences. Duly enlightened, I developed an appreciation for Farmer and told him so the last time we met.
Friday, February 01, 2008
The Nashville sound - argh
There was much wailing and gnashing of teeth earlier this week, as the bad weather in Memphis delayed the "overnight" delivery of the documents I needed, so that they arrived in Bristol about 90 minutes before I needed to account for them to a federal judge.
So, the gang at the office scanned and numbered them, I downloaded the 44 MB to the laptop where I was and burned the files onto a disc and handed it to the other side about 15 minutes before we saw the judge, who agreed to let us come back later in the day after the other side looked them over. Thankfully, we had what proved to be an easygoing bunch on the other side. Then, I drove back five hours in the rain.
That's not a very flattering story, but let's hope that all's well that ends well.
So, the gang at the office scanned and numbered them, I downloaded the 44 MB to the laptop where I was and burned the files onto a disc and handed it to the other side about 15 minutes before we saw the judge, who agreed to let us come back later in the day after the other side looked them over. Thankfully, we had what proved to be an easygoing bunch on the other side. Then, I drove back five hours in the rain.
That's not a very flattering story, but let's hope that all's well that ends well.
Monday, January 28, 2008
Tales from the Book Snake
As referenced here previously, my wife's Uncle David wrote a book about his life in book collecting, called Memoirs of a Book Snake: Forty Years of Seeking and Saving Old Books. The term "book snake" was a malapropism from the wife of one of his book and magic friends, who was attempting the term "book worm." (The book and magic guy was Jay Marshall, profiled here.)
Now, the in-laws' e-mail hotline is circulating what David has written for the Caxton Club of Chicago, a century-old society of bibliophiles, about the book snaking of his father and grandfather, my wife's grandfather and great-grandfather, which are the first seven pages of this edition of the Journal of the Caxton Club.
Now, the in-laws' e-mail hotline is circulating what David has written for the Caxton Club of Chicago, a century-old society of bibliophiles, about the book snaking of his father and grandfather, my wife's grandfather and great-grandfather, which are the first seven pages of this edition of the Journal of the Caxton Club.
The late Judge Dalton
There is now a tolerable Wikipedia page for Ted Dalton, besides 14 other past judges of the Western District of Virginia.
Thursday, January 24, 2008
Judge Farmer out?
This VLW Blog post said that Senator Puckett has declared his opposition to the reappointment of Judge John Farmer of the J & DR court in the district of Buchanan, Dickenson, Tazewell, and Russell counties.
Nobody's told me who will get the circuit court job for that same area, maybe because nobody knows. As evidenced by the hold up on the reappointment of Judge Farmer, the selection of a judge for the 29th Circuit is even more complicated now than it was in the circumstances of last year, when the Republicans evidently could not agree on a successor to Judge Williams from Grundy.
Nobody's told me who will get the circuit court job for that same area, maybe because nobody knows. As evidenced by the hold up on the reappointment of Judge Farmer, the selection of a judge for the 29th Circuit is even more complicated now than it was in the circumstances of last year, when the Republicans evidently could not agree on a successor to Judge Williams from Grundy.
In case you missed it
It says here:
"A warming global ocean — influencing the winds that shear off the tops of developing storms — could mean fewer Atlantic hurricanes striking the United States according to new findings by NOAA climate scientists."
"A warming global ocean — influencing the winds that shear off the tops of developing storms — could mean fewer Atlantic hurricanes striking the United States according to new findings by NOAA climate scientists."
Wednesday, January 23, 2008
Rhythm and Roots 2008 - Doc Watson and Ralph Stanley
The word is out that the 2008 Rhythm and Roots Reunion in downtown Bristol will feature both Doc Watson and Ralph Stanley.
On John Cook
It says here that John Cook of the Caskie and Frost firm in Lynchburg is up for a circuit court judgeship, and he has been rated well qualified by his local bar.
He can tell others that I am 100% for him or against him, whichever will do him the most good.
He can tell others that I am 100% for him or against him, whichever will do him the most good.
Dismissal in section 1983 case upheld on grounds of lack of state action
In German v. Fox, the Fourth Circuit in a per curiam opinion for the panel of Judges Motz and Duncan and District Judge Brinkema affirmed the dismissal of a section 1983 claim related to the plaintiff's dismissal from employment with a private, non-profit organization. Judge Conrad of the W.D. Va. had held that the plaintiff had failed to state a First Amendment claim, but the panel decided the complaint failed to plead state action.
Even though I mostly litigate these cases on the government side, this seems like an odd decision on a Rule 12(b)(6) motion, how much are you supposed to say about state action? I guess the real problem was that he pleaded too many facts, which happens sometimes - pleading unnecessary details leads to dismissal when those details show you cannot have a claim.
Even though I mostly litigate these cases on the government side, this seems like an odd decision on a Rule 12(b)(6) motion, how much are you supposed to say about state action? I guess the real problem was that he pleaded too many facts, which happens sometimes - pleading unnecessary details leads to dismissal when those details show you cannot have a claim.
I'm Spartacus! No, I'm Spartacus!
In Horace Mann Ins. Co. v. General Star Nat'l Ins. Co., the Fourth Circuit in an opinion by Judge Traxler, joined by Judges Niemeyer and District Judge Wilson of the W.D. Va., decided the competing claims of two insurers to the exalted position of the "excess" carrier, and reversed the decision of the District Court (the N.D. W.Va.), in a rare published opinion dealing with purely state law issues that includes a discussion of "the nature and operation of primary and excess liability insurance policies."
Funky place where we ate in Williamsburg
One place where we ate in Williamsburg last weekend was the Opus 9 Steakhouse - the two of us ate for $125, so it was not Shoney's. The place is in New Town.
Tuesday, January 22, 2008
What I remember seeing in Nice and Monaco
There was some effort made to influence my decision regarding the purchase of some lavender in Nice, and just outside that same market, I did see some substantial crookedness - on display alongside the main road by the beach, in broad daylight. In Monte Carlo, we saw the courthouse - with "LEX" over the front door - but no judges, and it seemed a far less impressive building than the casino.
Post No. 7,000
In the category of "Now it can be told"
The Chicago Tribune has this story of two public defenders who kept the secret of their client's murder confession, until his recent death.
Closer to home, a Virginia lawyer who represented a co-defendant in the Daryl Atkins case came forward with information that created doubt about his client's confession and led the circuit court to change Atkins' sentence to life in prison, as described here in the New York Times and here in the Washington Post. A timeline of the case is here.
Back in West Virginia, the justice who dined with Don Blankenship in the Riviera decided to recuse himself, after all, as described here in the New York Times.
The Chicago Tribune has this story of two public defenders who kept the secret of their client's murder confession, until his recent death.
Closer to home, a Virginia lawyer who represented a co-defendant in the Daryl Atkins case came forward with information that created doubt about his client's confession and led the circuit court to change Atkins' sentence to life in prison, as described here in the New York Times and here in the Washington Post. A timeline of the case is here.
Back in West Virginia, the justice who dined with Don Blankenship in the Riviera decided to recuse himself, after all, as described here in the New York Times.
Interesting stuff
The New York Times has the photos of West Virginia Supreme Court Chief Justice Maynard, hanging out with Don Blankenship in Monte Carlo, while the appeal of the $50 million verdict in favor of Harman Mining and against Blankenship's company was unresolved. (For the record, when I was in Nice and Monaco in 2007, I didn't see any judges I knew there.)
The Norfolk paper reports here that just because Judge Payne of the E.D. Va. called former Virginia lawyer Thomas E. Smolka "an embarrassment to the legal profession," that was no reason to overturn his federal convictions, according to a recent Fourth Circuit opinion.
Here is the story of the guy who after his conviction was overturned, wrote a letter telling more about his wrongdoing to the Commonwealth's attorney in Prince William County, who used it on the re-trial to get him a death sentence.
This article from Inside HigherEd says the University of North Carolina paid $385,000 to settle the sexual harassment case against their famous women's soccer coach. The settlement included a letter of apology from the coach. The Fourth Circuit's en banc opinion in the case is here.
Here's a wacky article on the City of Charlottesville's opposition to the coal power plant being built in Wise County. It says - there is no good power, we want the cold and the dark. I understood the 2007 Virginia Energy Plan to say that even with massive and expensive conservation efforts, Virginia's energy consumption will continue to increase.
The Norfolk paper reports here that just because Judge Payne of the E.D. Va. called former Virginia lawyer Thomas E. Smolka "an embarrassment to the legal profession," that was no reason to overturn his federal convictions, according to a recent Fourth Circuit opinion.
Here is the story of the guy who after his conviction was overturned, wrote a letter telling more about his wrongdoing to the Commonwealth's attorney in Prince William County, who used it on the re-trial to get him a death sentence.
This article from Inside HigherEd says the University of North Carolina paid $385,000 to settle the sexual harassment case against their famous women's soccer coach. The settlement included a letter of apology from the coach. The Fourth Circuit's en banc opinion in the case is here.
Here's a wacky article on the City of Charlottesville's opposition to the coal power plant being built in Wise County. It says - there is no good power, we want the cold and the dark. I understood the 2007 Virginia Energy Plan to say that even with massive and expensive conservation efforts, Virginia's energy consumption will continue to increase.
J&DR judges
The House of Delegates has named some juvenile and domestic relations district court judges, including:
The Honorable Florence A. Powell, of Washington, as a judge of the Twenty-eighth Judicial District for a term of six years commencing February 1, 2008.
The Honorable John M. Farmer, of Dickenson, as a judge of the Twenty-ninth Judicial District for a term of six years commencing April 1, 2008.
The Honorable Jeffrey S. Hamilton, of Scott, as a judge of the Thirtieth Judicial District for a term of six years commencing February 1, 2008.
Judge Hamilton, I suppose, fills the seat left vacant by former Judge Shull. Judge Powell was a circuit court pick, confirmed for the first time by the legislature. Judge Farmer was left out of the Senate bill.
The bills adding judgeships to the 30th Circuit and the 28th and 29th districts are continuing, although Senator Wampler on the Finance Committee voted against both, as shown here and here.
The Honorable Florence A. Powell, of Washington, as a judge of the Twenty-eighth Judicial District for a term of six years commencing February 1, 2008.
The Honorable John M. Farmer, of Dickenson, as a judge of the Twenty-ninth Judicial District for a term of six years commencing April 1, 2008.
The Honorable Jeffrey S. Hamilton, of Scott, as a judge of the Thirtieth Judicial District for a term of six years commencing February 1, 2008.
Judge Hamilton, I suppose, fills the seat left vacant by former Judge Shull. Judge Powell was a circuit court pick, confirmed for the first time by the legislature. Judge Farmer was left out of the Senate bill.
The bills adding judgeships to the 30th Circuit and the 28th and 29th districts are continuing, although Senator Wampler on the Finance Committee voted against both, as shown here and here.
Any means any
Today in Ali v. Federal Bureau of Prisons, the Supreme Court in an opinion by Justice Thomas concluded that the exclusion to the waiver of sovereign immunity in the Federal Tort Claims Act for "claims arising from the detention of property by 'any officer of customs or excise or any other law enforcement officer'" is not limited to "law enforcement officers enforcing customs or excise laws," but includes prison officials.
So, I guess our old Missouri case is still one of the few in which "any" did not really mean "any," or at least not any fish.
So, I guess our old Missouri case is still one of the few in which "any" did not really mean "any," or at least not any fish.
Monday, January 21, 2008
What Justice Koontz said at the VBA meeting
Justice Koontz talking about brief-writing said one thing the appellee should do is to organize its brief in the same way as the appellant's brief, no matter how inane, so that the brief readers can do a side-by-side analysis of the issues, one by one.
He also said think about why the Court granted the petition (which would be great if only they would tell us).
He said shorter briefs are better and acknowledged that the Court has been changing the Rules to require shorter briefs.
He said that in a case where the Court awards an appeal, before the argument, every brief gets read by every justice.
He said all else equal, footnotes are bad.
I didn't have the nerve to cross-examine him about, well, you know.
He also said think about why the Court granted the petition (which would be great if only they would tell us).
He said shorter briefs are better and acknowledged that the Court has been changing the Rules to require shorter briefs.
He said that in a case where the Court awards an appeal, before the argument, every brief gets read by every justice.
He said all else equal, footnotes are bad.
I didn't have the nerve to cross-examine him about, well, you know.
The transcript from Virginia v. Moore
Here is the transcript from the argument before the Supreme Court in the case of Virginia v. Moore, about which I had this post earlier.
The people I talked to in Williamsburg seemed to think the argument went well for the Commonwealth, but then the ones telling me this all had a rooting interest.
My old U.Va. and William & Mary contemporary who works on staff for the Court of Appeals was supposedly there, I suppose if she had been arrested for disorderly conduct I would know how her judge's position had fared before the High Court.
The people I talked to in Williamsburg seemed to think the argument went well for the Commonwealth, but then the ones telling me this all had a rooting interest.
My old U.Va. and William & Mary contemporary who works on staff for the Court of Appeals was supposedly there, I suppose if she had been arrested for disorderly conduct I would know how her judge's position had fared before the High Court.
Boucher picks Obama
As reported here in the Kingsport paper and here in the Richmond paper elsewhere, Southwest Virginia congressman Rick Boucher has endorsed Barack Obama.
In 1998, Congressman Boucher made this statement about President Bill Clinton, which says in part: "He has diminished his personal dignity and that of the office of the presidency. He has brought the presidency into disrepute and impaired the image of the president as a role model for younger Americans.... I share the public's deep disdain for the actions of the president. And I'm truly concerned that if Congress takes no action, many troubling unanswered questions will remain with regard to the example that his conduct sets."
In 1998, Congressman Boucher made this statement about President Bill Clinton, which says in part: "He has diminished his personal dignity and that of the office of the presidency. He has brought the presidency into disrepute and impaired the image of the president as a role model for younger Americans.... I share the public's deep disdain for the actions of the president. And I'm truly concerned that if Congress takes no action, many troubling unanswered questions will remain with regard to the example that his conduct sets."
Tuesday, January 15, 2008
Sunday, January 13, 2008
More on the (Floyd) Roberts nomination
On February 7, 1939, after the U.S. Senate voted to deny confirmation to Floyd Roberts of Bristol to the second seat on the U.S. District Court for the Western District of Virginia, President Roosevelt wrote this letter to Roberts, which says in part:
"My dear Judge Roberts:
I feel that in justice to you and your family I should write to you in regard to the refusal of the Senate to confirm your appointment as United States District Judge for the Western District of Virginia.
First of all, I tender you my thanks for the honorable, efficient, and in every way praiseworthy service that you have rendered to the people of the United States in general and to the people of the Western District of Virginia in particular.
Second, I wish it known that not one single person who has opposed your confirmation has lifted his voice in any shape, manner or form against your personal integrity and ability.
In order that you may know the full history of what has occurred, I take this opportunity to summarize the story.
On March 17, 1938, I received a letter from Senator Glass enclosing a clipping from a local Virginia paper. This newspaper article, quoting an editorial in another local Virginia paper, made the assumption that it would henceforth be necessary to receive the backing of Governor Price of Virginia before any Virginian could hope for a Federal appointment.
Senator Glass in his letter asked if Federal appointments, for which Senate approval was necessary, would be subjected to the effective veto of the Governor of Virginia.
To this I replied on March 18th, explaining to the Senator the difference between the appointive power, which is in the President, and the power of confirmation, which is in the Senate. I pointed out to the Senator that time-hallowed courtesy permits Senators and others to make recommendations for nomination, and, at the same time, that every President has sought information from any other source deemed advisable.
On March 19th Senator Glass wrote me again, covering his construction of Article II of the Constitution, and asking me again as to the accuracy of the newspaper statement. He winds up by saying, 'The inference is, of course, that you approve the offensive publication which was the basis of my inquiry.'
I replied to this letter from the Senator on March 21st in a personal and friendly vein. I stated that I was glad that we seemed to agree in our construction of the Constitution. I told him that I was not in the habit of confirming or denying any newspaper article or editorial. Obviously if I were to begin that sort of thing, I would have no spare time to attend to my executive duties.
I told the Senator to go ahead as before and make recommendations; that I would give such recommendations every consideration; but that I would, of course, reserve the right to get opinions from any other person I might select. I ended by asking the Senator to forget the newspaper article and wished him a good vacation and expressed the hope that he would come to see me on his return.
. . .
The Attorney General and I held several conferences with the result that we concluded that you were best fitted to fill the Judgeship.
As a result, I wrote on July 6th to both of the Virginia Senators stating that I had concluded to appoint you, that a number of gentlemen had been suggested for the place, but that I believed you to be the best fitted.
The following day, July 7th, I received a telegram from Senator Glass stating that he and his colleague would feel obliged to object to your appointment as being personally objectionable to them, and that a letter would follow. A few days later I received a letter from the Senator stating that he could not conceive any fair reason why one of his candidates had not been appointed.
It is worth noting that neither Senator on July 7th or subsequently raised any question as to your integrity or ability, and the only objection was that you were personally objectionable.
In regard to the original newspaper article suggesting that Governor Price had been given the veto over Federal appointments, this and similar stories are, of course, not worth answering or bothering about, for the very simple reason that no person—no Governor, no Senator, no member of the Administration—has at any time had, or ever will have, any right of veto over Presidential nominations. Every person with common sense knows this.
. . .
We come now to the last chapter. Your nomination was referred to the Judiciary Committee of the Senate and by the Chairman of that Committee to a Subcommittee of three. It appears from the record that both Senators from Virginia registered their objection with the Subcommittee saying, "This nomination is utterly and personally offensive to the Virginia Senators whose suggestions were invited by the Department of Justice only to be ignored." The Subcommittee reported back the nomination to the full Committee without recommendation, stating the raising of the matter of Senatorial courtesy and saying that this matter had not been a direct issue since 1913.
At a special meeting of the full Committee on the Judiciary, and before the Committee went into executive session, attention was invited to the presence of the Governor of Virginia, to the presence of two former Governors of Virginia, and to the presence of the nominee and his Counsel.
. . .
Continuing, the senior Senator from Virginia referred to other newspaper articles which spoke of "rebukes" to the Senators. It is almost needless for me to suggest that neither you nor I pay any attention to such excuses. Finally, Senator Glass stated, "As a matter of fact, the President of the United States did give to the Governor of Virginia the veto power over nominations made by the two Virginia United States Senators." I am sorry, in view of my long personal friendship for the senior Senator, that he has made any such statement, and I can only excuse it on the ground of anger or forgetfulness.
At the end of his speech Senator Glass says, "Mr. Cummings never had the slightest idea of giving consideration to the recommendations of the two Virginia Senators because the Governor of Virginia had been promised the right of veto on nominations that they made." Neither of these statements is true.
Senator Glass was followed by Senator Byrd who stated that your nomination was personally offensive to both Senators, in fact, "personally obnoxious."
At the very close of the Judiciary Committee hearing Governor Price stated, "Senator Glass has made a charge against me. He is entirely mistaken about it." The Governor further stated that he was not involved in the newspaper story.
The Committee thereupon abruptly closed the hearing and went into executive session, with the result, as you know, that your nomination was reported adversely to the Senate.
. . .
In the particular case of which you are the unfortunate and innocent victim, the Senators from Virginia have in effect said to the President—"We have nominated to you two candidates acceptable to us; you are hereby directed to nominate one of our two candidates, and if you do not we will reject the nomination of anybody else selected by you, however fit he may be."
Perhaps, my dear Judge Roberts, the rejection of your nomination will have a good effect on the citizenship and the thinking of the whole nation in that it will tend to create a greater interest in the Constitution of our country, a greater interest in its preservation in accordance with the intention of the gentlemen who wrote it.
I am sorry, indeed, that you have been the victim. Against you not one syllable has been uttered in derogation of your character, or ability in the legal profession or your record on the Bench."
"My dear Judge Roberts:
I feel that in justice to you and your family I should write to you in regard to the refusal of the Senate to confirm your appointment as United States District Judge for the Western District of Virginia.
First of all, I tender you my thanks for the honorable, efficient, and in every way praiseworthy service that you have rendered to the people of the United States in general and to the people of the Western District of Virginia in particular.
Second, I wish it known that not one single person who has opposed your confirmation has lifted his voice in any shape, manner or form against your personal integrity and ability.
In order that you may know the full history of what has occurred, I take this opportunity to summarize the story.
On March 17, 1938, I received a letter from Senator Glass enclosing a clipping from a local Virginia paper. This newspaper article, quoting an editorial in another local Virginia paper, made the assumption that it would henceforth be necessary to receive the backing of Governor Price of Virginia before any Virginian could hope for a Federal appointment.
Senator Glass in his letter asked if Federal appointments, for which Senate approval was necessary, would be subjected to the effective veto of the Governor of Virginia.
To this I replied on March 18th, explaining to the Senator the difference between the appointive power, which is in the President, and the power of confirmation, which is in the Senate. I pointed out to the Senator that time-hallowed courtesy permits Senators and others to make recommendations for nomination, and, at the same time, that every President has sought information from any other source deemed advisable.
On March 19th Senator Glass wrote me again, covering his construction of Article II of the Constitution, and asking me again as to the accuracy of the newspaper statement. He winds up by saying, 'The inference is, of course, that you approve the offensive publication which was the basis of my inquiry.'
I replied to this letter from the Senator on March 21st in a personal and friendly vein. I stated that I was glad that we seemed to agree in our construction of the Constitution. I told him that I was not in the habit of confirming or denying any newspaper article or editorial. Obviously if I were to begin that sort of thing, I would have no spare time to attend to my executive duties.
I told the Senator to go ahead as before and make recommendations; that I would give such recommendations every consideration; but that I would, of course, reserve the right to get opinions from any other person I might select. I ended by asking the Senator to forget the newspaper article and wished him a good vacation and expressed the hope that he would come to see me on his return.
. . .
The Attorney General and I held several conferences with the result that we concluded that you were best fitted to fill the Judgeship.
As a result, I wrote on July 6th to both of the Virginia Senators stating that I had concluded to appoint you, that a number of gentlemen had been suggested for the place, but that I believed you to be the best fitted.
The following day, July 7th, I received a telegram from Senator Glass stating that he and his colleague would feel obliged to object to your appointment as being personally objectionable to them, and that a letter would follow. A few days later I received a letter from the Senator stating that he could not conceive any fair reason why one of his candidates had not been appointed.
It is worth noting that neither Senator on July 7th or subsequently raised any question as to your integrity or ability, and the only objection was that you were personally objectionable.
In regard to the original newspaper article suggesting that Governor Price had been given the veto over Federal appointments, this and similar stories are, of course, not worth answering or bothering about, for the very simple reason that no person—no Governor, no Senator, no member of the Administration—has at any time had, or ever will have, any right of veto over Presidential nominations. Every person with common sense knows this.
. . .
We come now to the last chapter. Your nomination was referred to the Judiciary Committee of the Senate and by the Chairman of that Committee to a Subcommittee of three. It appears from the record that both Senators from Virginia registered their objection with the Subcommittee saying, "This nomination is utterly and personally offensive to the Virginia Senators whose suggestions were invited by the Department of Justice only to be ignored." The Subcommittee reported back the nomination to the full Committee without recommendation, stating the raising of the matter of Senatorial courtesy and saying that this matter had not been a direct issue since 1913.
At a special meeting of the full Committee on the Judiciary, and before the Committee went into executive session, attention was invited to the presence of the Governor of Virginia, to the presence of two former Governors of Virginia, and to the presence of the nominee and his Counsel.
. . .
Continuing, the senior Senator from Virginia referred to other newspaper articles which spoke of "rebukes" to the Senators. It is almost needless for me to suggest that neither you nor I pay any attention to such excuses. Finally, Senator Glass stated, "As a matter of fact, the President of the United States did give to the Governor of Virginia the veto power over nominations made by the two Virginia United States Senators." I am sorry, in view of my long personal friendship for the senior Senator, that he has made any such statement, and I can only excuse it on the ground of anger or forgetfulness.
At the end of his speech Senator Glass says, "Mr. Cummings never had the slightest idea of giving consideration to the recommendations of the two Virginia Senators because the Governor of Virginia had been promised the right of veto on nominations that they made." Neither of these statements is true.
Senator Glass was followed by Senator Byrd who stated that your nomination was personally offensive to both Senators, in fact, "personally obnoxious."
At the very close of the Judiciary Committee hearing Governor Price stated, "Senator Glass has made a charge against me. He is entirely mistaken about it." The Governor further stated that he was not involved in the newspaper story.
The Committee thereupon abruptly closed the hearing and went into executive session, with the result, as you know, that your nomination was reported adversely to the Senate.
. . .
In the particular case of which you are the unfortunate and innocent victim, the Senators from Virginia have in effect said to the President—"We have nominated to you two candidates acceptable to us; you are hereby directed to nominate one of our two candidates, and if you do not we will reject the nomination of anybody else selected by you, however fit he may be."
Perhaps, my dear Judge Roberts, the rejection of your nomination will have a good effect on the citizenship and the thinking of the whole nation in that it will tend to create a greater interest in the Constitution of our country, a greater interest in its preservation in accordance with the intention of the gentlemen who wrote it.
I am sorry, indeed, that you have been the victim. Against you not one syllable has been uttered in derogation of your character, or ability in the legal profession or your record on the Bench."
Quotes from the latest round of Virginia Supreme Court opinions
"There is good reason for the rule that appellate courts must defer to the factual findings of the trial judge in Fourth Amendment cases. The fact patterns in such cases arrive in infinite variety, seldom or never exactly duplicated. Moreover, they involve consideration of nuances such as tone of voice, facial expression, gestures and body language seldom discernable from a printed record. The controlling inquiry is the effect of such matters on a reasonable person in the light of all the surrounding circumstances." Russell, S.J., in Malbrough v. Com.
"[T]he law in effect when a contract is made becomes a part of the contract as though incorporated therein." Kinser, J., in Wright v. Com.
"[T]he plaintiff's allegations that she was injured after she was placed in a defective chair, if proven at trial, would be sufficient to establish a prima facie case of medical negligence against the defendant without the necessity of expert testimony." Hassell, C.J., in Coston v. Bio-Medical Applications of Virginia, Inc.
"We adhere to the view that the public policy of Virginia favors arbitration. TM Delmarva Power, L.L.C. v. NCP of Va., L.L.C., 263 Va. 116, 122-23, 557 S.E.2d 199, 202 (2002). Nevertheless, that policy does not impair the constitutional right of a party to have access to the courts, including the right to a jury trial if requested, unless that party has, by contract, voluntarily waived those rights." Russell, S.J., in Mission Residential, LLC v. Triple Net Properties, LLC.
"Failure to object to the use of the deposition is sufficient to establish acquiescence. Accordingly, based upon the record before us, the trial court did not err in using deposition evidence in the resolution of the motion in limine and subsequent motion for summary judgment." Lemons, J., in Lloyd v. Kime.
"A gift has been defined as a contract without a consideration." Russell, S.J., in Ott v. L&J Holdings.
"Because Rule 1:8 requires leave of court to amend any pleading after it is filed, we conclude that the circuit court did not err by holding that an amended complaint is not deemed filed, and is thus without legal efficacy, until a trial court grants leave to amend." Kinser, J., in Ahari v. Morrison.
"It is immaterial whether the assailant's subjective motivation is playful, amorous, vindictive, or hostile. An injury resulting from an assault arises out of the injured person's employment when it is directed at the victim as an employee. Russell, S.J., in Hilton v. Martin (reversing Judge Moore in a Russell County case).
"In summary, we have determined that: (1) the circuit court had jurisdiction to determine what interest was due to the Joint Venture under the court's June 27, 2005 judgment pursuant to UOSA's motion for satisfaction of that judgment; (2) the circuit court did not err in determining that interest was to accrue on the compensatory damages awarded in the First Trial between November 6, 2003 and June 27, 2005, but it erred in setting the rate of that interest at 9% per year, rather than the rate of 1% per month provided for in the jury's verdict; (3) the circuit court erred in determining that post-judgment interest was to accrue on the pre-judgment interest awarded in the First Trial and the Second Trial; (4) the circuit court erred in determining that UOSA made a timely allocation of the May 8, 2006 payment on the judgment debt; and, (5) the circuit court did not err in denying UOSA's motion for satisfaction of the judgment. Koontz, J., in Upper Occoquan Sewage Authority v. Blake Const. Co., Inc. (applying Leasing Service Corp. v. Justice, 243 Va. 441, 416 S.E.2d 439 (1992), one of my favorites).
"Because the term 'a person' means any individual human being, the term encompasses the entire universe of people, including the defendant. There is no authority for excluding the defendant from that universe. If the legislature had intended to exclude the defendant from the class of persons whose endangerment is prohibited by Code § 46.2-817(B), the legislature would have said so." Goodwyn, J., in Phelps v. Com.
"We reject DVCA's argument that the plain language of the definition of 'declaration' includes instruments such as articles of incorporation and bylaws if such documents are filed in the appropriate land records and create either certain assessment authority or maintenance duties for the property owners' association. Such a literal application of the phrase 'any instrument' in the definition of 'declaration' is inconsistent with the concept of 'declaration' used in other provisions of the POAA." Lacy, S.J., in Dogwood Valley Citizens Ass'n, Inc. v. Shifflett (causing me to recollect Justice Breyer's comment that "any entity" does not mean "any fish").
"While the term 'abandonment' is similarly defined for purposes of domestic relations and elective share matters, there are significant differences in the analysis of the evidence when resolving the issue in the domestic relations and elective share contexts." Lacy, S.J., in Purce v. Patterson.
"In light of the presumption established in Code § 23-7.4(B) that an out-of-state student be required to demonstrate by clear and convincing evidence that he entered the Commonwealth for a primary purpose other than an educational purpose, we hold that the circuit court was plainly wrong in finding that the decision made by GMU was arbitrary, capricious, or otherwise contrary to law." Koontz, J., in George Mason University v. Floyd (reversing Judge Ney of Fairfax County).
"While Code § 55-59.1(A) does allow a proper notice of foreclosure sale to exercise an accrued right of acceleration, Bayview failed to fulfill the contractual condition precedent that would have given it such a right." Agee, J., in Bayview Loan Servicing, LLC v. Simmons.
"In the absence of a reasonable effort to market his residual work capacity, Favinger is not entitled to temporary partial disability benefits for his alleged loss of overtime earnings." Kinser, J., in Ford Motor Co. v. Favinger.
"[T]he law in effect when a contract is made becomes a part of the contract as though incorporated therein." Kinser, J., in Wright v. Com.
"[T]he plaintiff's allegations that she was injured after she was placed in a defective chair, if proven at trial, would be sufficient to establish a prima facie case of medical negligence against the defendant without the necessity of expert testimony." Hassell, C.J., in Coston v. Bio-Medical Applications of Virginia, Inc.
"We adhere to the view that the public policy of Virginia favors arbitration. TM Delmarva Power, L.L.C. v. NCP of Va., L.L.C., 263 Va. 116, 122-23, 557 S.E.2d 199, 202 (2002). Nevertheless, that policy does not impair the constitutional right of a party to have access to the courts, including the right to a jury trial if requested, unless that party has, by contract, voluntarily waived those rights." Russell, S.J., in Mission Residential, LLC v. Triple Net Properties, LLC.
"Failure to object to the use of the deposition is sufficient to establish acquiescence. Accordingly, based upon the record before us, the trial court did not err in using deposition evidence in the resolution of the motion in limine and subsequent motion for summary judgment." Lemons, J., in Lloyd v. Kime.
"A gift has been defined as a contract without a consideration." Russell, S.J., in Ott v. L&J Holdings.
"Because Rule 1:8 requires leave of court to amend any pleading after it is filed, we conclude that the circuit court did not err by holding that an amended complaint is not deemed filed, and is thus without legal efficacy, until a trial court grants leave to amend." Kinser, J., in Ahari v. Morrison.
"It is immaterial whether the assailant's subjective motivation is playful, amorous, vindictive, or hostile. An injury resulting from an assault arises out of the injured person's employment when it is directed at the victim as an employee. Russell, S.J., in Hilton v. Martin (reversing Judge Moore in a Russell County case).
"In summary, we have determined that: (1) the circuit court had jurisdiction to determine what interest was due to the Joint Venture under the court's June 27, 2005 judgment pursuant to UOSA's motion for satisfaction of that judgment; (2) the circuit court did not err in determining that interest was to accrue on the compensatory damages awarded in the First Trial between November 6, 2003 and June 27, 2005, but it erred in setting the rate of that interest at 9% per year, rather than the rate of 1% per month provided for in the jury's verdict; (3) the circuit court erred in determining that post-judgment interest was to accrue on the pre-judgment interest awarded in the First Trial and the Second Trial; (4) the circuit court erred in determining that UOSA made a timely allocation of the May 8, 2006 payment on the judgment debt; and, (5) the circuit court did not err in denying UOSA's motion for satisfaction of the judgment. Koontz, J., in Upper Occoquan Sewage Authority v. Blake Const. Co., Inc. (applying Leasing Service Corp. v. Justice, 243 Va. 441, 416 S.E.2d 439 (1992), one of my favorites).
"Because the term 'a person' means any individual human being, the term encompasses the entire universe of people, including the defendant. There is no authority for excluding the defendant from that universe. If the legislature had intended to exclude the defendant from the class of persons whose endangerment is prohibited by Code § 46.2-817(B), the legislature would have said so." Goodwyn, J., in Phelps v. Com.
"We reject DVCA's argument that the plain language of the definition of 'declaration' includes instruments such as articles of incorporation and bylaws if such documents are filed in the appropriate land records and create either certain assessment authority or maintenance duties for the property owners' association. Such a literal application of the phrase 'any instrument' in the definition of 'declaration' is inconsistent with the concept of 'declaration' used in other provisions of the POAA." Lacy, S.J., in Dogwood Valley Citizens Ass'n, Inc. v. Shifflett (causing me to recollect Justice Breyer's comment that "any entity" does not mean "any fish").
"While the term 'abandonment' is similarly defined for purposes of domestic relations and elective share matters, there are significant differences in the analysis of the evidence when resolving the issue in the domestic relations and elective share contexts." Lacy, S.J., in Purce v. Patterson.
"In light of the presumption established in Code § 23-7.4(B) that an out-of-state student be required to demonstrate by clear and convincing evidence that he entered the Commonwealth for a primary purpose other than an educational purpose, we hold that the circuit court was plainly wrong in finding that the decision made by GMU was arbitrary, capricious, or otherwise contrary to law." Koontz, J., in George Mason University v. Floyd (reversing Judge Ney of Fairfax County).
"While Code § 55-59.1(A) does allow a proper notice of foreclosure sale to exercise an accrued right of acceleration, Bayview failed to fulfill the contractual condition precedent that would have given it such a right." Agee, J., in Bayview Loan Servicing, LLC v. Simmons.
"In the absence of a reasonable effort to market his residual work capacity, Favinger is not entitled to temporary partial disability benefits for his alleged loss of overtime earnings." Kinser, J., in Ford Motor Co. v. Favinger.
On the intervention of the Commonwealth in the Episcopal Church property litigation
The Washington Post reports here ("State Files to Join Episcopal Case," by Michelle Boorstein, Saturday, January 12, 2008; Page B03), that Attorney General McDonnell has petitioned for leave of court to allow the Commonwealth to intervene in the much-publicized litigation pending in Fairfax County Circuit Court over the property rights of breakaway conservative congregations. The stated reason for the intervention is to defend the constitutionality of the Virginia statute at issue.
That seems like a pretty good reason. I've always wondered why the Attorney General never tried to inveigle himself in the Martin case, a couple of years ago.
The Washington Times has this story ("Church law may be with breakaways," by Julia Duin, January 12, 2008), that says in part: "Attorney General Bob McDonnell's motion to intervene is a significant setback to the Episcopal Church and the Diocese of Virginia, which have said secular courts have no place in resolving the property dispute — the largest in the church's history."
That seems like a pretty good reason. I've always wondered why the Attorney General never tried to inveigle himself in the Martin case, a couple of years ago.
The Washington Times has this story ("Church law may be with breakaways," by Julia Duin, January 12, 2008), that says in part: "Attorney General Bob McDonnell's motion to intervene is a significant setback to the Episcopal Church and the Diocese of Virginia, which have said secular courts have no place in resolving the property dispute — the largest in the church's history."
On moonshine in Southwest Virginia
Back on January 8, the Washington Post published this story by Jerry Markon on the continuation of the moonshine business in Franklin County and elsewhere.
It says in part:
"Since Prohibition, southwestern Virginia has been a hub of moonshine production, along with North Carolina and a few other Southern states. The tradition extends to the English and Scotch-Irish colonists who settled western Virginia and made grain-based whiskey and the Germans who specialized in apple brandy. When Franklin County was formed in 1786, the first county court met in a house with a tavern."
It says in part:
"Since Prohibition, southwestern Virginia has been a hub of moonshine production, along with North Carolina and a few other Southern states. The tradition extends to the English and Scotch-Irish colonists who settled western Virginia and made grain-based whiskey and the Germans who specialized in apple brandy. When Franklin County was formed in 1786, the first county court met in a house with a tavern."
On showing the Super Bowl on a really big screen at church
The Daily Progress has this story that says that fellow from the Rutherford Institute wants to take on the National Football League on the issue of displaying NFL games on big screens in churches.
Saturday, January 12, 2008
On painkiller abuse in Southwest Virginia
Sunday's Washington Post has this lengthy report, particularly methadone. The article associates the problem with coal mining, but I wonder whether a likelier cause would be lack of coal mining employment, the level of employment in the mines is not what it was notwithstanding the rise in energy prices.
Worth reading
Williamsburg's own National Center for State Courts has this report on future trends in state courts. You'd think that with the NCSC here, Virginia's state courts would be the most advanced in the nation, or at least the most considered. I can't get over the Virginia Supreme Court's new font rule (Courier-Verdana) as a metaphor for whatever else ails Virginia's court system; whoever conceived and supported that rule doesn't read or doesn't care what the "experts" think (much less the crackpots like myself). Even Adobe says: "Generally, serif text fonts are dramatically easier to read than sans serif text fonts." (OK, I'll follow Ray Ward's advice and let go of this issue.)
This interesting post from Concurring Opinions talks about some research based on the video that led the U.S. Supreme Court to reverse the denial of summary judgment in the case of Scott v. Harris. It is interesting to think about, when is what a videotape shows not a matter of genuine dispute?
This post laments the state of the presidential primaries. From my recollection, having studied this off and on for thirty years, the primaries began as a Progressive impulse in the early 20th century, but were largely ignored by such voices for democracy as Harry Daugherty (Warren Harding's campaign manager, famous for the original "smoke-filled room"), and the "modern" era of the primaries began perhaps in 1960, when Kennedy beat Humphrey in West Virginia, proving his electability in a "protestant" state, but really as late as the 1970s, when McGovern and then Carter mastered the delegate selection rules to the chagrin of party insiders. There's nothing 19th century about the primaries; they didn't really exist before the television era.
In the saga of the Harman Mining case, Harman Mining is now claiming that Don Blankenship was seen having dinner with the Chief Justice of the West Virginia Supreme Court a few weeks before the opinion reversing the $60 million verdict against Blankenship's company came out. Also in West Virginia, a lawyer failed to appear at a Supreme Court hearing on whether he should lose his license.
In Florida, a blogging lawyer took on the representation of a criminal defense lawyer in connection with the gag order in a criminal case, and now the gag order applies to him, too.
Here's the liberal line against a Bush appointee to a judgeship in Wyoming, whose website suggests to me he is mostly a plaintiff's lawyer representing injured people.
Reason has this post about a recent NC case, where it was apparently held that the attorney-client privilege ends with the death of the client. Wasn't that the issue in the Vince Foster case?
Speaking of Vince Foster, Wonkette notes here that freaky vampire/witch/mummy writer Anne Rice is enthusiastically endorsing Ms. Clinton. I have read almost all the Anne Rice books, at least the ones written under the name of Anne Rice (and not Rampling or Roquelaure) - and so I conclude that she will not be given a cabinet position in the Clinton administration.
This interesting post from Concurring Opinions talks about some research based on the video that led the U.S. Supreme Court to reverse the denial of summary judgment in the case of Scott v. Harris. It is interesting to think about, when is what a videotape shows not a matter of genuine dispute?
This post laments the state of the presidential primaries. From my recollection, having studied this off and on for thirty years, the primaries began as a Progressive impulse in the early 20th century, but were largely ignored by such voices for democracy as Harry Daugherty (Warren Harding's campaign manager, famous for the original "smoke-filled room"), and the "modern" era of the primaries began perhaps in 1960, when Kennedy beat Humphrey in West Virginia, proving his electability in a "protestant" state, but really as late as the 1970s, when McGovern and then Carter mastered the delegate selection rules to the chagrin of party insiders. There's nothing 19th century about the primaries; they didn't really exist before the television era.
In the saga of the Harman Mining case, Harman Mining is now claiming that Don Blankenship was seen having dinner with the Chief Justice of the West Virginia Supreme Court a few weeks before the opinion reversing the $60 million verdict against Blankenship's company came out. Also in West Virginia, a lawyer failed to appear at a Supreme Court hearing on whether he should lose his license.
In Florida, a blogging lawyer took on the representation of a criminal defense lawyer in connection with the gag order in a criminal case, and now the gag order applies to him, too.
Here's the liberal line against a Bush appointee to a judgeship in Wyoming, whose website suggests to me he is mostly a plaintiff's lawyer representing injured people.
Reason has this post about a recent NC case, where it was apparently held that the attorney-client privilege ends with the death of the client. Wasn't that the issue in the Vince Foster case?
Speaking of Vince Foster, Wonkette notes here that freaky vampire/witch/mummy writer Anne Rice is enthusiastically endorsing Ms. Clinton. I have read almost all the Anne Rice books, at least the ones written under the name of Anne Rice (and not Rampling or Roquelaure) - and so I conclude that she will not be given a cabinet position in the Clinton administration.
Thursday, January 10, 2008
Worth reading
Here is an interesting article on the oral argument before the Supreme Court in the medical malpractice cases involving the issue charitable immunity, quoting Steve Emmert among others who participated in the argument. The issue was described "as the most significant matter taken up by the court regarding medical malpractice since 1990, when the Virginia Supreme Court upheld the state's limit on malpractice awards."
The Daily Press reports here and here on the life and times of the late Judge Nelson Overton.
The Daily Press also reports here on candidates for the circuit court judgeship in Hampton.
This First Amendment website links to Chief Judge Jones' denial of summary judgment in the case of Cole v. Buchanan County School Board.
The Richmond paper has reports here and here on the litigation between the Richmond mayor and city council, as it heads in the direction of the Virginia Supreme Court.
Here is a report on a case related to a Board of Supervisors election in Nelson County, headed to the Virginia Supreme Court. The vote was 324-321, but the loser got a court order preventing the winner from taking office while the outcome is still in dispute.
From the Fourth Circuit, in DirecTV, Inc. v. Tolson, the Court in an opinion by Judge Shedd, joined by Judge Niemeyer and District Judge Brinkema, refused on comity grounds to take the Dormant Commerce Clause challenge brought by satellite TV broadcasters to North Carolina's taxation scheme for satellite and cable television. It was interesting to read the facts, as to how the law has changed in North Carolina, going away from local franchise taxation to a scheme whereby the state collects the tax and pays back to the localities. Something like that will happen in Virginia, one of these days.
The Daily Press reports here and here on the life and times of the late Judge Nelson Overton.
The Daily Press also reports here on candidates for the circuit court judgeship in Hampton.
This First Amendment website links to Chief Judge Jones' denial of summary judgment in the case of Cole v. Buchanan County School Board.
The Richmond paper has reports here and here on the litigation between the Richmond mayor and city council, as it heads in the direction of the Virginia Supreme Court.
Here is a report on a case related to a Board of Supervisors election in Nelson County, headed to the Virginia Supreme Court. The vote was 324-321, but the loser got a court order preventing the winner from taking office while the outcome is still in dispute.
From the Fourth Circuit, in DirecTV, Inc. v. Tolson, the Court in an opinion by Judge Shedd, joined by Judge Niemeyer and District Judge Brinkema, refused on comity grounds to take the Dormant Commerce Clause challenge brought by satellite TV broadcasters to North Carolina's taxation scheme for satellite and cable television. It was interesting to read the facts, as to how the law has changed in North Carolina, going away from local franchise taxation to a scheme whereby the state collects the tax and pays back to the localities. Something like that will happen in Virginia, one of these days.
Wednesday, January 09, 2008
What have these cases got in common?
An elderly ex-mayor in Northern Virginia got a suspended jail sentence for running a brothel in a strip mall, as described here in the Washington Post.
A former town employee in Southwest Virginia convicted of reselling pipe bought with town money "was sentenced to 27 months in prison and ordered to pay back $139,962 of town money," according to this story in the Roanoke Times.
A former town employee in Southwest Virginia convicted of reselling pipe bought with town money "was sentenced to 27 months in prison and ordered to pay back $139,962 of town money," according to this story in the Roanoke Times.
Tuesday, January 08, 2008
Notables
Judge Wilkinson dissented here from the denial of rehearing en banc in the Virginia Republican primary case. He wrote: "At a minimum, courts should not use the American Constitution to weaken the centrist impulses in American politics. It should be clear that an open primary, where candidates must compete for votes beyond their party’s core adherents, is a permissible choice for a state to make. To use our unelected powers to foreclose this electoral option would prove the worst of self-inflicted wounds."
In Gilda v. U.S., the Federal Circuit dealt with the timeliness of the notice of appeal that was defectively e-filed on the last day. The lawyer in that case should be glad he is not in the federal court in California where the judge rejected the one day late-filed attorneys' fee petition in Toshiba America Information Systems v. New England Technology.
In the Seventh Circuit, Judge Easterbrook took on the lack of science behind the Q-Ray Ionized Bracelet in this opinion: "Defendants might as well have said: 'Beneficent creatures from the 17th Dimension use this bracelet as a beacon to locate people who need pain relief, and whisk them off to their homeworld every night to provide help in ways unknown to our science.'"
In Gilda v. U.S., the Federal Circuit dealt with the timeliness of the notice of appeal that was defectively e-filed on the last day. The lawyer in that case should be glad he is not in the federal court in California where the judge rejected the one day late-filed attorneys' fee petition in Toshiba America Information Systems v. New England Technology.
In the Seventh Circuit, Judge Easterbrook took on the lack of science behind the Q-Ray Ionized Bracelet in this opinion: "Defendants might as well have said: 'Beneficent creatures from the 17th Dimension use this bracelet as a beacon to locate people who need pain relief, and whisk them off to their homeworld every night to provide help in ways unknown to our science.'"
On standards of review
In Evans v. Eaton Corp. Long Term Disability Plan, Judge Wilkinson wrote this on standards of review:
"The purpose of standards of review is to focus reviewing courts upon their proper role when passing on the conduct of other decisionmakers. Standards of review are thus an elemental expression of judicial restraint, which, in their deferential varieties, safeguard the superior vantage points of those entrusted with primary decisional responsibility. The clear error standard, for example, protects district courts’ primacy as triers of fact. See Anderson v. Bessemer City, 470 U.S. 564, 574-75 (1985). AEDPA’s reasonableness standards protect state courts’ authority over state criminal convictions. See 28 U.S.C. § 2254(d) (2000). Chevron deference, like the Administrative Procedure Act’s arbitrary-and-capricious and substantial evidence standards, protects agencies’ authority in carrying out the missions for which they are created. See 5 U.S.C. § 706 (2000); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). Rational basis review protects the political choices of our government’s elected branches. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993) (calling the standard "a paradigm of judicial restraint"). And trust law, to which ERISA is so intimately linked, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989), uses the abuse of discretion standard to protect a fiduciary’s decisions concerning the trust funds in his care. See 3 Restatement (Third) of Trusts § 87 (2007).
The precise definitions of these various standards, the nuances separating them from one another, "cannot be imprisoned within any forms of words" for "we cannot escape, in relation to this problem, the use of undefined defining terms." Universal Camera Corp. v. NLRB, 340 U.S. 474, 489 (1951) (Frankfurter, J.). But what these and other such standards share is the designation of a primary decisionmaker other than the reviewing court, and the instrument, deference, with which that primacy is to be maintained."
Then, he applied the standard of review to reverse the District Court's conclusion in an ERISA benefits case.
"The purpose of standards of review is to focus reviewing courts upon their proper role when passing on the conduct of other decisionmakers. Standards of review are thus an elemental expression of judicial restraint, which, in their deferential varieties, safeguard the superior vantage points of those entrusted with primary decisional responsibility. The clear error standard, for example, protects district courts’ primacy as triers of fact. See Anderson v. Bessemer City, 470 U.S. 564, 574-75 (1985). AEDPA’s reasonableness standards protect state courts’ authority over state criminal convictions. See 28 U.S.C. § 2254(d) (2000). Chevron deference, like the Administrative Procedure Act’s arbitrary-and-capricious and substantial evidence standards, protects agencies’ authority in carrying out the missions for which they are created. See 5 U.S.C. § 706 (2000); Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843 (1984). Rational basis review protects the political choices of our government’s elected branches. See FCC v. Beach Commc’ns, Inc., 508 U.S. 307, 314 (1993) (calling the standard "a paradigm of judicial restraint"). And trust law, to which ERISA is so intimately linked, Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 110 (1989), uses the abuse of discretion standard to protect a fiduciary’s decisions concerning the trust funds in his care. See 3 Restatement (Third) of Trusts § 87 (2007).
The precise definitions of these various standards, the nuances separating them from one another, "cannot be imprisoned within any forms of words" for "we cannot escape, in relation to this problem, the use of undefined defining terms." Universal Camera Corp. v. NLRB, 340 U.S. 474, 489 (1951) (Frankfurter, J.). But what these and other such standards share is the designation of a primary decisionmaker other than the reviewing court, and the instrument, deference, with which that primacy is to be maintained."
Then, he applied the standard of review to reverse the District Court's conclusion in an ERISA benefits case.
On Judge Hogan
Last month, I mentioned Judge Thomas F. Hogan of the United States District Court for the District of Columbia in a post, and now I read here in the Post that that he is taking senior status.
The story begins:
"On the wall of his chambers looking out on the U.S. Capitol, U.S. District Chief Judge Thomas F. Hogan has a treasured keepsake -- a framed picture of Ronald Reagan, doubled over in a laughing fit.
Fred Fielding, who was the White House counsel at the time, sent Hogan the photo of Reagan guffawing in the Oval Office with his advisers shortly after he appointed the young trial lawyer to the federal bench in 1982. A note is scribbled alongside the picture:
'Dear Tom,
We all thought your judgeship was a great idea.'"
The story begins:
"On the wall of his chambers looking out on the U.S. Capitol, U.S. District Chief Judge Thomas F. Hogan has a treasured keepsake -- a framed picture of Ronald Reagan, doubled over in a laughing fit.
Fred Fielding, who was the White House counsel at the time, sent Hogan the photo of Reagan guffawing in the Oval Office with his advisers shortly after he appointed the young trial lawyer to the federal bench in 1982. A note is scribbled alongside the picture:
'Dear Tom,
We all thought your judgeship was a great idea.'"
The swallows and the crystal ball
Today, in John R. Sand & Gravel Co. v. U.S., the Supreme Court by 7-2 vote held that the statute of limitations for a claim against the U.S. under 28 U. S. C. §2501 could not be waived.
Distinguishing other cases where the limitations statutes for claims against the Government were held to be waivable, or subject to equitable estoppel, Justice Breyer concluded: "But these few swallows cannot make petitioner’s summer."
Justice Stevens and Justice Ginsburg thought the later cases were better-reasoned, and provided a basis for overruling the old cases to the contrary.
In her separate dissent, Justice Ginsburg invoked the crystal ball:
"Several times, in recent Terms, the Court has discarded statutory decisions rendered infirm by what a majority considered to be better informed opinion. See, e.g., Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. ___, ___ (2007) (slip op., at 28) (overruling Dr. Miles Medi-cal Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911)); Bowles v. Russell, 551 U. S. ___, ___ (2007) (slip op., at 9) (overruling Thompson v. INS, 375 U. S. 384 (1964) (per curiam), and Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215 (1962) (per curiam)); Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U. S. 28, 42– 43 (2006) (overruling, inter alia, Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488 (1942)); Hohn v. United States, 524 U. S. 236, 253 (1998) (overruling House v. Mayo, 324 U. S. 42 (1945) (per curiam)). In light of these overrulings, the Court’s decision to adhere to Kendall, Finn, and Soriano — while offering nothing to justify their reasoning or results—is, to say the least, perplexing. After today’s decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior deci-sions interpreting legislative texts."
Distinguishing other cases where the limitations statutes for claims against the Government were held to be waivable, or subject to equitable estoppel, Justice Breyer concluded: "But these few swallows cannot make petitioner’s summer."
Justice Stevens and Justice Ginsburg thought the later cases were better-reasoned, and provided a basis for overruling the old cases to the contrary.
In her separate dissent, Justice Ginsburg invoked the crystal ball:
"Several times, in recent Terms, the Court has discarded statutory decisions rendered infirm by what a majority considered to be better informed opinion. See, e.g., Leegin Creative Leather Products, Inc. v. PSKS, Inc., 551 U. S. ___, ___ (2007) (slip op., at 28) (overruling Dr. Miles Medi-cal Co. v. John D. Park & Sons Co., 220 U. S. 373 (1911)); Bowles v. Russell, 551 U. S. ___, ___ (2007) (slip op., at 9) (overruling Thompson v. INS, 375 U. S. 384 (1964) (per curiam), and Harris Truck Lines, Inc. v. Cherry Meat Packers, Inc., 371 U. S. 215 (1962) (per curiam)); Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U. S. 28, 42– 43 (2006) (overruling, inter alia, Morton Salt Co. v. G. S. Suppiger Co., 314 U. S. 488 (1942)); Hohn v. United States, 524 U. S. 236, 253 (1998) (overruling House v. Mayo, 324 U. S. 42 (1945) (per curiam)). In light of these overrulings, the Court’s decision to adhere to Kendall, Finn, and Soriano — while offering nothing to justify their reasoning or results—is, to say the least, perplexing. After today’s decision, one will need a crystal ball to predict when this Court will reject, and when it will cling to, its prior deci-sions interpreting legislative texts."
Monday, January 07, 2008
More on Moore v. Com., the Rule 5A:12 case
AL&P has a post about my post, and their title is Virginia sua sponte converts criminal procedure nerdery to jurisdictional oppression.
Better than a bake sale
In the works for this legislative session is a provision that would amend the charter for the City of Martinsville to specify what happens if the City sells something it owns (like, a cable system?) for $10 million to $20 million.
Kentucky Speedway loses anti-trust claim against NASCAR
Today in the E.D. Ky., Senior Judge Bertelsman granted NASCAR summary judgment on the anti-trust claims brought by the Kentucky Speedway, LLC., Case No. 05-138, over NASCAR's refusal to let the Kentucky track have a NEXTEL cup race.
The Court concluded that "a producer of a product is free under current antitrust laws to select its distributors and to refuse to deal with would-be distributors, no matter how worthy or deserving they may be. Even more fundamentally, in order to establish both its antitrust claims, Speedway was required to prove relevant markets through qualified expert testimony as part of its prima facie case. This it failed to do, after being given a sufficient opportunity. Thus, summary judgment is appropriate."
On the second issue, the Court concluded that the plaintiff's expert's testimony flunked the Daubert test.
Here is one small article on the case.
The Court concluded that "a producer of a product is free under current antitrust laws to select its distributors and to refuse to deal with would-be distributors, no matter how worthy or deserving they may be. Even more fundamentally, in order to establish both its antitrust claims, Speedway was required to prove relevant markets through qualified expert testimony as part of its prima facie case. This it failed to do, after being given a sufficient opportunity. Thus, summary judgment is appropriate."
On the second issue, the Court concluded that the plaintiff's expert's testimony flunked the Daubert test.
Here is one small article on the case.
Story of the day
The Bristol paper has this story of a boy from Abingdon who enjoyed the Show Us the Cow contest in his final days.
Funky No Child Left Behind ruling from the Sixth Circuit
In Pontiac School District, et al. v. Secretary of the United States Dep’t of Educ., a a split panel of the Sixth Circuit let some local school boards off the hook from compliance with the federal No Child Left Behind Act. The majority opinion begins:
"This case requires us to decide a fundamental question of federal versus state funding under the No Child Left Behind Act of 2001 (“NCLB” or “the Act”), 20 U.S.C. §§ 6301–7941. Plaintiffs-Appellants are school districts and education associations that receive federal funding under NCLB in exchange for complying with the Act’s various educational requirements and accountability measures. Based on the so-called “Unfunded Mandates Provision,” which provides that “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a), Plaintiffs filed suit in district court against the Secretary of Education seeking, among other relief, a judgment declaring that they need not comply with the Act’s requirements where federal funds do not cover the increased costs of compliance. The district court concluded, however, that Plaintiffs must comply with the Act’s requirements regardless of any federal-funding shortfall and accordingly granted the Secretary’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Because statutes enacted under the Spending Clause of the United States Constitution must provide clear notice to the States of their liabilities should they decide to accept federal funding under those statutes, and because we conclude that NCLB fails to provide clear notice as to who bears the additional costs of compliance, we REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion."
The dissent says the rulings lets the local schools boards have their federal money without complying with the strings attached to it, and that's wrong.
"This case requires us to decide a fundamental question of federal versus state funding under the No Child Left Behind Act of 2001 (“NCLB” or “the Act”), 20 U.S.C. §§ 6301–7941. Plaintiffs-Appellants are school districts and education associations that receive federal funding under NCLB in exchange for complying with the Act’s various educational requirements and accountability measures. Based on the so-called “Unfunded Mandates Provision,” which provides that “[n]othing in this Act shall be construed to . . . mandate a State or any subdivision thereof to spend any funds or incur any costs not paid for under this Act,” 20 U.S.C. § 7907(a), Plaintiffs filed suit in district court against the Secretary of Education seeking, among other relief, a judgment declaring that they need not comply with the Act’s requirements where federal funds do not cover the increased costs of compliance. The district court concluded, however, that Plaintiffs must comply with the Act’s requirements regardless of any federal-funding shortfall and accordingly granted the Secretary’s motion to dismiss the complaint for failure to state a claim upon which relief can be granted. Because statutes enacted under the Spending Clause of the United States Constitution must provide clear notice to the States of their liabilities should they decide to accept federal funding under those statutes, and because we conclude that NCLB fails to provide clear notice as to who bears the additional costs of compliance, we REVERSE the judgment of the district court and REMAND this case for further proceedings consistent with this opinion."
The dissent says the rulings lets the local schools boards have their federal money without complying with the strings attached to it, and that's wrong.
Why Hillary Clinton will outlaw the Super Bowl and perhaps the entire month of January
If Ms. Clinton could turn the page over to February, I'd say she would have done it by now, this year and many of the years past. What I wonder is why anyone would want her as the candidate, with all the tired old whacky background, mixed in with these Super Bowls -
January 26, 1992: Washington Redskins beat Buffalo Bills, 37-24, in Super Bowl XXVI. Later that same day, Bill and Hillary Clinton appear on Sixty Minutes, to save his campaign by defusing the bimbo eruption (borrowing the phrase of Betsey Wright) of Gennifer Flowers, as described here. Years later, in his deposition for the Paula Jones case, Bill Clinton acknowledged that he had shacked up with Ms. Flowers, which some took to mean that he lied to save his campaign on Super Bowl Sunday.
January 31, 1993: Dallas Cowboys beat Buffalo Bills, 52-17, in Super Bowl XXVII. In the previous week, President Clinton named wife Hillary Clinton to head the task force that came up with their ill-fated health care proposal of 1993.
January 30, 1994: Dallas Cowboys beat Buffalo Bills, 30-13, in Super Bowl XXVIII. A couple of weeks earlier, President Clinton asked Janet Reno to appoint the special prosecutor to investigate Whitewater, as described here, which special prosecutor was ultimately succeeded by Kenneth Starr.
January 29, 1995: San Francisco 49ers beat San Diego Chargers, 49-26, in Super Bowl XXIX. Earlier in the month, the 104th Congress began, with the Republicans in the majority in both houses for the first time since the Eisenhower administration, having gained 54 seats in the mid-term referendum on the Clinton presidency.
January 28, 1996: Dallas Cowboys beat Pittsburgh Steelers, 27-17, in Super Bowl XXX. Two days earlier, Ms. Clinton becomes first First Lady to give testimony before a federal grand jury, on subjects including the mysterious reappearance of Rose Law firm billing records, as described here.
January 26, 1997: Green Bay Packers beat New England Patriots, 35-21, in Super Bowl XXI. Earlier in the month, the 105th Congress took over, still with a Republican majority despite President Clinton's re-election, and this is the Congress which passed the Iraq Liberation Act, signed by President Clinton the next year.
January 25, 1998: Denver Broncos beat Green Bay Packers, 31-24, in Super Bowl XXXII. The next day, President Clinton held a press conference and delivered the phrase, "I did not have sexual relations with that woman, Miss Lewinsky," the subject of this page. The day after that, Ms. Clinton declares the whole thing a "vast right-wing conspiracy," leaving history with two famous phrases from the Clintons in one week.
January 31, 1999: Denver Broncos beat Atlanta Falcons, 34-19, in Super Bowl XXXIII. Four days earlier, the United States Senate by a vote of 44-56 rejected a last-ditch motion by Senator Robert Byrd of West Virginia for pre-trial dismissal of the impeachment proceedings against President Clinton, as shown in Congressional Record Vol. 145, No. 15.
January 26, 1992: Washington Redskins beat Buffalo Bills, 37-24, in Super Bowl XXVI. Later that same day, Bill and Hillary Clinton appear on Sixty Minutes, to save his campaign by defusing the bimbo eruption (borrowing the phrase of Betsey Wright) of Gennifer Flowers, as described here. Years later, in his deposition for the Paula Jones case, Bill Clinton acknowledged that he had shacked up with Ms. Flowers, which some took to mean that he lied to save his campaign on Super Bowl Sunday.
January 31, 1993: Dallas Cowboys beat Buffalo Bills, 52-17, in Super Bowl XXVII. In the previous week, President Clinton named wife Hillary Clinton to head the task force that came up with their ill-fated health care proposal of 1993.
January 30, 1994: Dallas Cowboys beat Buffalo Bills, 30-13, in Super Bowl XXVIII. A couple of weeks earlier, President Clinton asked Janet Reno to appoint the special prosecutor to investigate Whitewater, as described here, which special prosecutor was ultimately succeeded by Kenneth Starr.
January 29, 1995: San Francisco 49ers beat San Diego Chargers, 49-26, in Super Bowl XXIX. Earlier in the month, the 104th Congress began, with the Republicans in the majority in both houses for the first time since the Eisenhower administration, having gained 54 seats in the mid-term referendum on the Clinton presidency.
January 28, 1996: Dallas Cowboys beat Pittsburgh Steelers, 27-17, in Super Bowl XXX. Two days earlier, Ms. Clinton becomes first First Lady to give testimony before a federal grand jury, on subjects including the mysterious reappearance of Rose Law firm billing records, as described here.
January 26, 1997: Green Bay Packers beat New England Patriots, 35-21, in Super Bowl XXI. Earlier in the month, the 105th Congress took over, still with a Republican majority despite President Clinton's re-election, and this is the Congress which passed the Iraq Liberation Act, signed by President Clinton the next year.
January 25, 1998: Denver Broncos beat Green Bay Packers, 31-24, in Super Bowl XXXII. The next day, President Clinton held a press conference and delivered the phrase, "I did not have sexual relations with that woman, Miss Lewinsky," the subject of this page. The day after that, Ms. Clinton declares the whole thing a "vast right-wing conspiracy," leaving history with two famous phrases from the Clintons in one week.
January 31, 1999: Denver Broncos beat Atlanta Falcons, 34-19, in Super Bowl XXXIII. Four days earlier, the United States Senate by a vote of 44-56 rejected a last-ditch motion by Senator Robert Byrd of West Virginia for pre-trial dismissal of the impeachment proceedings against President Clinton, as shown in Congressional Record Vol. 145, No. 15.
Friday, January 04, 2008
Of Miner and Minor
After mulling it over for a few years, I have actually ordered a copy of The Minor Family of Virginia, listed on this page.
Since this book by John B. Minor was published in 1923, I don't know, however, whether I could use it to prove kinship to the Chicago lawyer named Judson Miner, who according to this article hired Barack Obama to his first job out of law school.
Since this book by John B. Minor was published in 1923, I don't know, however, whether I could use it to prove kinship to the Chicago lawyer named Judson Miner, who according to this article hired Barack Obama to his first job out of law school.
Fourth Circuit affirms denial of post-conviction relief in Winchester death penalty case
In Bell v. Kelly, the Fourth Circuit in a 19 page opinion by Judge Shedd, joined by Judges Niemeyer and Duncan, affirmed the decision by Chief Judge Jones of the W.D. Va. to deny the petition for habeas corpus of Edward N. Bell, who was sentenced to death in state court for the murder of a Winchester police sergeant in 1999.
Thursday, January 03, 2008
The legendary D'Antoni
From the Arizona Republic, here is a delightful profile of Lewis D'Antoni, still living in West Virginia at age 94, the father of the head coach (and assistant coach) of the Phoenix Suns.
The article says in part:
"Lewis D'Antoni, who turned 94 on New Year's Eve, is a legend in this small coal-mining town nestled among the Appalachians. His daughter, Kathy, an education official, recently gave a speech to the Rotary in nearby Bluefield, and upon conclusion she asked whether anyone had a question.
No one raised a hand, which Kathy found odd. Everyone understood everything perfectly?
Finally, an older gentleman raised his hand.
"You any relation to Lew D'Antoni?"
"Yes," Kathy said. "I'm his daughter."
"Well, I tell ya what," the man said, "if he was playing ball today, he'd be making $80 million a year. The best ballplayer ever to come out of here.""
That Rotary meeting sounds like a Bristol Lions club meeting I once attended, where the wife of one of the members gave a sincere but somewhat tremulous presentation about some charitable enterprise, then opened the floor for questions - all of which were about why a good looking woman like her married such a bum.
The article says in part:
"Lewis D'Antoni, who turned 94 on New Year's Eve, is a legend in this small coal-mining town nestled among the Appalachians. His daughter, Kathy, an education official, recently gave a speech to the Rotary in nearby Bluefield, and upon conclusion she asked whether anyone had a question.
No one raised a hand, which Kathy found odd. Everyone understood everything perfectly?
Finally, an older gentleman raised his hand.
"You any relation to Lew D'Antoni?"
"Yes," Kathy said. "I'm his daughter."
"Well, I tell ya what," the man said, "if he was playing ball today, he'd be making $80 million a year. The best ballplayer ever to come out of here.""
That Rotary meeting sounds like a Bristol Lions club meeting I once attended, where the wife of one of the members gave a sincere but somewhat tremulous presentation about some charitable enterprise, then opened the floor for questions - all of which were about why a good looking woman like her married such a bum.
On Judge Wood
The Staunton paper has this report on the retirement of Augusta County Circuit Court Judge Thomas Wood, a good man and good judge, to my observation.
Last week's Virginia Court of Appeals opinion on questions presented
The en banc opinion in Moore v. Com. is about the appellant's lawyer citing the wrong legal standard in stating the questions presented under Rule 5A:12, and thereby failing to present a question using the right legal standard, with the result that the case was booted without a decision on the merits.
According to the dissent, the majority came up with this 5A:12 issue "for the first time sua sponte following argument on rehearing en banc." The panel decision did not address the sufficiency of the statement of the questions presented.
Judge Humphreys in his concurrence explained: "Some might suggest our disposition of this case is an overly technical application of our Rules. However, under the constitutional and statutory scheme under which we operate, we must decide cases based upon the issues appellants present to us, not the issues they might or should have presented. At both the trial and appellate level, our system of justice is inherently an adversarial system and the courts may not properly assume the role of an advocate for either party."
Judge Petty wrote that's all well and good, but the record is not as clear that the right legal standard was not raised: "While it is clear that appellant employed the irrelevant probable cause standard in his question presented, it is also clear that all parties involved in this case addressed the relevant standard of reasonable suspicion in arguing and deciding the case. . . . In his opening brief, appellant argued that the officer had neither probable cause nor reasonable suspicion to justify the stop. The Attorney General understood the issue, rephrased the question presented to state the correct constitutional standard, and went on to address it. In a published decision, a panel of this Court decided the case on the merits. Finally, we never asked appellant to address the issue at oral argument. Simply put, at no time prior to our decision did the form of the question presented raise any concern."
An interesting combination of dissenters, Elder, Felton, and Beales, were of the view that the lawyer's statement of the question was close enough to put before the Court the issue of whether the failure to suppress the disputed evidence was legal error, and that should be close enough.
The majority's decision reinforces the idea that clarity of expression is the essence of the lawyer's art. Even so, this decision strikes me as mostly wrong. It creates incentive to waste words in an effort to cover all bases. I wondered why a petition I got in a recent Virginia Supreme Court case had the same issue restated five different ways, but maybe now I know. Also, the sua sponte aspect is troubling - after multiple layers of briefing, argument, and decision, the appeal gets whacked on some new issue without a word of oral or written argument. There is something contradictory about a decision that says, on the one hand, the Court can only act on what the lawyers define as the question presented, yet on the other hand the Court can decide what is the question presented without considering the lawyers' views.
If the case goes to the next level, I wonder how the requirements of Rule 5:17(c) will be addressed. Opinions such as in Haugen v. Shenandoah Valley Dept. of Social Services, 645 S.E.2d 261 (Va. 2007) suggest some cause for optimism on this procedural issue, but there are others not so friendly. Somewhat surprisingly, there's not much about Rule 5:17 as the ancestor of 5A:12 in any of the four opinions.
The Federal courts have a somewhat similar rule in Rule 28(a)(5), but I'm not aware of any case where a federal appeals court has applied this rule to boot an appeal where the substantive argument was addressed in the body of the brief - not that Virginia's appeals courts much care about what other courts do. See generally Wright, Miller & Cooper, 16A Fed. Prac. & Proc. Juris.3d § 3974.1. I argued Rule 28 one time where the pro se appellant didn't put anything in his brief but references to the arguments made in the District Court, citing Northland Ins. Co. v. Stewart Title Guaranty Co., 327 F.3d 448 (6th Cir. 2003), in which the Sixth Circuit "joined the other circuits in concluding that the requirements of Rule 28 may not be satisfied by reference to court papers filed in the lower court." What did I get? An order from the Sixth Circuit directing the appellant to fix his brief.
According to the dissent, the majority came up with this 5A:12 issue "for the first time sua sponte following argument on rehearing en banc." The panel decision did not address the sufficiency of the statement of the questions presented.
Judge Humphreys in his concurrence explained: "Some might suggest our disposition of this case is an overly technical application of our Rules. However, under the constitutional and statutory scheme under which we operate, we must decide cases based upon the issues appellants present to us, not the issues they might or should have presented. At both the trial and appellate level, our system of justice is inherently an adversarial system and the courts may not properly assume the role of an advocate for either party."
Judge Petty wrote that's all well and good, but the record is not as clear that the right legal standard was not raised: "While it is clear that appellant employed the irrelevant probable cause standard in his question presented, it is also clear that all parties involved in this case addressed the relevant standard of reasonable suspicion in arguing and deciding the case. . . . In his opening brief, appellant argued that the officer had neither probable cause nor reasonable suspicion to justify the stop. The Attorney General understood the issue, rephrased the question presented to state the correct constitutional standard, and went on to address it. In a published decision, a panel of this Court decided the case on the merits. Finally, we never asked appellant to address the issue at oral argument. Simply put, at no time prior to our decision did the form of the question presented raise any concern."
An interesting combination of dissenters, Elder, Felton, and Beales, were of the view that the lawyer's statement of the question was close enough to put before the Court the issue of whether the failure to suppress the disputed evidence was legal error, and that should be close enough.
The majority's decision reinforces the idea that clarity of expression is the essence of the lawyer's art. Even so, this decision strikes me as mostly wrong. It creates incentive to waste words in an effort to cover all bases. I wondered why a petition I got in a recent Virginia Supreme Court case had the same issue restated five different ways, but maybe now I know. Also, the sua sponte aspect is troubling - after multiple layers of briefing, argument, and decision, the appeal gets whacked on some new issue without a word of oral or written argument. There is something contradictory about a decision that says, on the one hand, the Court can only act on what the lawyers define as the question presented, yet on the other hand the Court can decide what is the question presented without considering the lawyers' views.
If the case goes to the next level, I wonder how the requirements of Rule 5:17(c) will be addressed. Opinions such as in Haugen v. Shenandoah Valley Dept. of Social Services, 645 S.E.2d 261 (Va. 2007) suggest some cause for optimism on this procedural issue, but there are others not so friendly. Somewhat surprisingly, there's not much about Rule 5:17 as the ancestor of 5A:12 in any of the four opinions.
The Federal courts have a somewhat similar rule in Rule 28(a)(5), but I'm not aware of any case where a federal appeals court has applied this rule to boot an appeal where the substantive argument was addressed in the body of the brief - not that Virginia's appeals courts much care about what other courts do. See generally Wright, Miller & Cooper, 16A Fed. Prac. & Proc. Juris.3d § 3974.1. I argued Rule 28 one time where the pro se appellant didn't put anything in his brief but references to the arguments made in the District Court, citing Northland Ins. Co. v. Stewart Title Guaranty Co., 327 F.3d 448 (6th Cir. 2003), in which the Sixth Circuit "joined the other circuits in concluding that the requirements of Rule 28 may not be satisfied by reference to court papers filed in the lower court." What did I get? An order from the Sixth Circuit directing the appellant to fix his brief.
Magistrate Judge Welsh recommends enforcing arbitration clause in title loan contract
In Reel v. Anderson Financial Services, LLC, Magistrate Judge Welsh of the W.D. Va. recommended that the District Court should grant the defendant's motion to compel arbitration, rejecting the plaintiff's argument that the arbitration clause in the contract, a "Motor Vehicle Line of Credit" was unenforceable. Among other things, the judge concluded that the plaintiff could not show that the arbitration clause was unconscionable. The analysis is consistent with, although in some ways dissimilar, from the reasoning in the recent Third Circuit case applying Virginia law in somewhat similar circumstances.
Wednesday, January 02, 2008
On Virginia v. Moore
Later this month, the Supreme Court will hear oral argument in the case of Virginia v. Moore, about Tom Goldstein has this post with links to the briefs of the Commonwealth and the respondent. The brief for the U.S. is here, the brief for the ABA is here, the brief for the VTLA is here.
In this case, the defendant Moore was arrested, instead of being given a summons, under circumstances where Virginia law requires that he be given a summons, and so the issue is whether for purposes of the Fourth Amendment the search incident to his unlawful but not unconstitutional arrest was unreasonable and the evidence obtained subject to exclusion.
The en banc Virginia Court of Appeals by 7-4 vote said the evidence was in, the Virginia Supreme Court said it was out.
It is an interesting area, the relationship between the guarantees of the Bill of Rights and state law. We know that in the area of property rights, state law defines whose property is whose, but federal law defines what process is due in connection with deprivations of property. State law defines what the crimes are, but federal law defines what is an unreasonable seizure in connection with persons suspected of committing state law crimes. Doesn't it?
Suppose the General Assembly takes an interest in this case and decides to amend the arrest statute, so it allows an arrest instead of a summons whenever there has been a misdemeanor committed in the officer's presence and he feels like conducting a search. Can constitutional rights be altered in so crude a fashion? I wonder.
In this case, the defendant Moore was arrested, instead of being given a summons, under circumstances where Virginia law requires that he be given a summons, and so the issue is whether for purposes of the Fourth Amendment the search incident to his unlawful but not unconstitutional arrest was unreasonable and the evidence obtained subject to exclusion.
The en banc Virginia Court of Appeals by 7-4 vote said the evidence was in, the Virginia Supreme Court said it was out.
It is an interesting area, the relationship between the guarantees of the Bill of Rights and state law. We know that in the area of property rights, state law defines whose property is whose, but federal law defines what process is due in connection with deprivations of property. State law defines what the crimes are, but federal law defines what is an unreasonable seizure in connection with persons suspected of committing state law crimes. Doesn't it?
Suppose the General Assembly takes an interest in this case and decides to amend the arrest statute, so it allows an arrest instead of a summons whenever there has been a misdemeanor committed in the officer's presence and he feels like conducting a search. Can constitutional rights be altered in so crude a fashion? I wonder.
On personal knowledge
I read this article about the late D.C. lawyer William Hundley, including this quote regarding Monica Lewinsky:
“She’s no Marilyn Monroe, and I knew Marilyn Monroe.”
“She’s no Marilyn Monroe, and I knew Marilyn Monroe.”
Of Brownlee and Giuliani
The New York Times has this article that talks of Rudolph Giuliani's efforts to intervene with W.D. Va. U.S. Attorney John Brownlee, on behalf of Giuliani's then-client Purdue Pharma, manufacturer of OxyContin:
"They figured Mr. Brownlee, a younger federal prosecutor, would look up to Mr. Giuliani, who became a legend as a United States attorney in New York.
Between June and October 2006, Mr. Giuliani met or spoke with the prosecutor on six occasions. During those conversations, Mr. Giuliani was cordial but pointed in arguing against what he felt were flaws in the case.
Mr. Brownlee would not change course, though, even when the Purdue legal team appealed, unsuccessfully, at the 11th hour to his superiors at the Justice Department in Washington.
In October 2006, Mr. Brownlee told Mr. Giuliani and Purdue that he expected to ask for a grand jury indictment by the end of the month. Plea discussions ensued and Mr. Brownlee ultimately agreed that the three executives would not have to do jail time."
The article also cites Tazewell County Commonwealth's Attorney Dennis Lee: "Dennis Lee, the Virginia state prosecutor for Tazewell County, an area hard hit by OxyContin abuse, said he was stunned several years ago to learn that Mr. Giuliani was working for Purdue. He had a favorable impression of Mr. Giuliani, he said, and a poor opinion of the company, which he said had played down and dissembled about its drug’s problem."
PointofLaw has this post, which explains part of the context of the criminal investigation, suggesting that the government holds all the cards in this area even more than usual.
"They figured Mr. Brownlee, a younger federal prosecutor, would look up to Mr. Giuliani, who became a legend as a United States attorney in New York.
Between June and October 2006, Mr. Giuliani met or spoke with the prosecutor on six occasions. During those conversations, Mr. Giuliani was cordial but pointed in arguing against what he felt were flaws in the case.
Mr. Brownlee would not change course, though, even when the Purdue legal team appealed, unsuccessfully, at the 11th hour to his superiors at the Justice Department in Washington.
In October 2006, Mr. Brownlee told Mr. Giuliani and Purdue that he expected to ask for a grand jury indictment by the end of the month. Plea discussions ensued and Mr. Brownlee ultimately agreed that the three executives would not have to do jail time."
The article also cites Tazewell County Commonwealth's Attorney Dennis Lee: "Dennis Lee, the Virginia state prosecutor for Tazewell County, an area hard hit by OxyContin abuse, said he was stunned several years ago to learn that Mr. Giuliani was working for Purdue. He had a favorable impression of Mr. Giuliani, he said, and a poor opinion of the company, which he said had played down and dissembled about its drug’s problem."
PointofLaw has this post, which explains part of the context of the criminal investigation, suggesting that the government holds all the cards in this area even more than usual.
Monday, December 31, 2007
Three books I'd like to check out
A U.Va. law grad named Kris B. Shepard has written a book called Rationing Justice: Poverty Lawyers and Poor People in the Deep South. The Daily Report has this review, which says in part: "Shepard uses the very different histories of the two largest programs in the region, the Atlanta Legal Aid Society and North Mississippi Rural Legal Services, to shed light on the diverse currents of the poverty law movement in the Deep South. The nascent Mississippi program was rural with significant African-American leadership and a strong civil rights focus, while the longstanding Atlanta program was mostly white, supported by the local legal establishment and focused on urban issues such as substandard public housing and predatory lending." The U.Va. Lawyer also has a review here.
Over the weekend, I saw the Booknotes segment on Senator Sam Ervin, Last of the Founding Fathers, by Karl E. Campbell of Appalachian State, which has this page about the book. I guess I've got a soft spot for white-haired self-made story-telling Constitutional law experts from the rural South, or at least some of them, at least the ones from places that are west of what is now Interstate 77.
In today's Bristol paper, in the Bucky column of all places, is retold the tale behind the book The Blind Side: Evolution of a Game, which among other things tells of Michael Oher, now a scholarship offensive lineman at Ole Miss. This sounds to me like a book that doesn't just belong in the sports pages.
Over the weekend, I saw the Booknotes segment on Senator Sam Ervin, Last of the Founding Fathers, by Karl E. Campbell of Appalachian State, which has this page about the book. I guess I've got a soft spot for white-haired self-made story-telling Constitutional law experts from the rural South, or at least some of them, at least the ones from places that are west of what is now Interstate 77.
In today's Bristol paper, in the Bucky column of all places, is retold the tale behind the book The Blind Side: Evolution of a Game, which among other things tells of Michael Oher, now a scholarship offensive lineman at Ole Miss. This sounds to me like a book that doesn't just belong in the sports pages.
On Doe v. Chao, Opinion No. VII
In Doe v. Chao, the Fourth Circuit in an opinion by Judge Wilkinson held that Judge Williams of the W.D. Va. in his latest opinion (Doe VI) strayed beyond the mandate from the Fourth Circuit following its latest opinion (Doe V) reversing the post-remand decision by the District Court (Doe IV) in this long-running Privacy Act case that was the subject of an earlier Supreme Court opinion (Doe III) that affirmed the first Fourth Circuit opinion (Doe II) that reversed the District Court's opinion (Doe I).
Judge Wilkinson observed: "Even litigation spawning multiple Roman numeral suffixes must come to an end."
Judge Wilkinson observed: "Even litigation spawning multiple Roman numeral suffixes must come to an end."
Friday, December 28, 2007
In case you missed it
From Judiciary chair, Senator Leahy, in his statement of December 18:
"President Bush nominated Duncan Getchell to one of Virginia’s Fourth Circuit Vacancies over the objections of Senators Warner and Webb, one a Republican and one a Democrat. They had submitted a list of five recommended nominations, and specifically warned the White House not to nominate Mr. Getchell. As a result, this nomination that is opposed by Democratic and Republican home-state Senators is one that cannot move."
"President Bush nominated Duncan Getchell to one of Virginia’s Fourth Circuit Vacancies over the objections of Senators Warner and Webb, one a Republican and one a Democrat. They had submitted a list of five recommended nominations, and specifically warned the White House not to nominate Mr. Getchell. As a result, this nomination that is opposed by Democratic and Republican home-state Senators is one that cannot move."
Thursday, December 27, 2007
Of geography and such
Here, the NY Times reports on a NLRB decision that allows employers to limit the use of e-mail for unionization purposes.
Here those shills at the evil Verizon Wireless empire brag on providing "high-speed" wireless connectivity to Southwest Virginia, defined thus: "The network extends from Fairfield, W.Va., through Lexington, Roanoke, Salem, Blacksburg, Christiansburg, Radford and Pulaski. It also extends along Interstate 64 to Covington and includes portions of Alleghany, Bath, Bedford, Botetourt, Carroll, Craig, Floyd, Franklin, Giles, Montgomery, Patrick, Pulaski, Roanoke and Rockbridge counties." Which portions, the hilltops? What about the rest of us?
Over in Kentucky, the NY Times says here, one in ten has no teeth.
Here it says that Virginia and Tennessee are going to gang up on the Clinch and the Powell Rivers. The coalfields are defined by the Clinch River. You can look it up - e.g., that statute that says: "Tenants in common, joint tenants, executors with the power to sell, and coparceners of real property, including mineral rights east and south of the Clinch River, shall be compellable to make partition and may compel partition, but in the case of an executor only if the power of sale is properly exercisable at that time under the circumstances; and a lien creditor or any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor or the rents and profits thereof to the satisfaction of his lien." I think they quit mining coal east and south of the Clinch River not long after Chesterfield County adopted as its seal "a coal miner leaning on his pick under a pine tree with a flowing river at his feet."
Here those shills at the evil Verizon Wireless empire brag on providing "high-speed" wireless connectivity to Southwest Virginia, defined thus: "The network extends from Fairfield, W.Va., through Lexington, Roanoke, Salem, Blacksburg, Christiansburg, Radford and Pulaski. It also extends along Interstate 64 to Covington and includes portions of Alleghany, Bath, Bedford, Botetourt, Carroll, Craig, Floyd, Franklin, Giles, Montgomery, Patrick, Pulaski, Roanoke and Rockbridge counties." Which portions, the hilltops? What about the rest of us?
Over in Kentucky, the NY Times says here, one in ten has no teeth.
Here it says that Virginia and Tennessee are going to gang up on the Clinch and the Powell Rivers. The coalfields are defined by the Clinch River. You can look it up - e.g., that statute that says: "Tenants in common, joint tenants, executors with the power to sell, and coparceners of real property, including mineral rights east and south of the Clinch River, shall be compellable to make partition and may compel partition, but in the case of an executor only if the power of sale is properly exercisable at that time under the circumstances; and a lien creditor or any owner of undivided estate in real estate may also compel partition for the purpose of subjecting the estate of his debtor or the rents and profits thereof to the satisfaction of his lien." I think they quit mining coal east and south of the Clinch River not long after Chesterfield County adopted as its seal "a coal miner leaning on his pick under a pine tree with a flowing river at his feet."
Friday, December 21, 2007
The Highland County wind farm decision
The Roanoke paper reports here and the Richmond paper reports here on the conditions to the approval of the Highland County windfarm project. It sounds like the SCC went along with the intermediate position advanced by the Nature Conservancy - if my understanding is correct - that wind power can be done in ways that minimize the effect on bats and birds. I heard a great discussion about this case a few months ago at the VBA annual meeting.
The State Corporation Commission press release is here and the final order is here.
The press release notes: "Commissioner Judith Williams Jagdmann, while agreeing with approval of the project, dissented to that part of the SCC's order which provides for subsequent proceedings to increase the maximum annual payments required of Highland Wind for mitigation. Commissioner Jagdmann wrote that an 'applicant before this Commission, requesting a certificate of public convenience and necessity under Virginia statutes, deserves a more definitive ruling on the requirements that will be attached to such certificate.'"
The State Corporation Commission press release is here and the final order is here.
The press release notes: "Commissioner Judith Williams Jagdmann, while agreeing with approval of the project, dissented to that part of the SCC's order which provides for subsequent proceedings to increase the maximum annual payments required of Highland Wind for mitigation. Commissioner Jagdmann wrote that an 'applicant before this Commission, requesting a certificate of public convenience and necessity under Virginia statutes, deserves a more definitive ruling on the requirements that will be attached to such certificate.'"
Senator Webb's assignment for Christmas
The New York Times reports here that the U.S. Senate will stay open enough, with Virginia's own Senator Webb presiding a few (more) times, to keep President Bush from making recess appointments over the holidays.
WV's Justice Starcher will not run again
Here and here are articles on the decision by the outspoken Justice Starcher of the West Virginia Supreme Court, that he will not run again.
Justice Starcher wrote the funky opinion in the Harman Mining case, which is now the subject of a petition for rehearing, supposedly based in part on a ruling by the bankruptcy judge in Harman Mining's bankruptcy case in Virginia.
Justice Starcher wrote the funky opinion in the Harman Mining case, which is now the subject of a petition for rehearing, supposedly based in part on a ruling by the bankruptcy judge in Harman Mining's bankruptcy case in Virginia.
Virginia law decision from Third Circuit on unconscionability of arbitration clause in consumer contract
In Gay v. CreditInform, a panel of the U.S. Court of Appeals for the Third Circuit held that the arbitration clause in a contract with a consumer was not unconscionable, applying Virginia law because of a choice-of-law provision in the contract. The Court relied in large measure on the Virginia Supreme Court's analysis of unconscionability in Management Enterprises, Inc. v. Thorncroft Co., Inc., 243 Va. 469, 416 S.E.2d 229 (1992). Here is an article on the decision, from law.com.
I am unsurprised at the conclusion that waiver of the right to file a class action is not unconscionable under Virginia law, as there generally is no such thing as a class action under Virginia law.
I am unsurprised at the conclusion that waiver of the right to file a class action is not unconscionable under Virginia law, as there generally is no such thing as a class action under Virginia law.
Thursday, December 20, 2007
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