Sort of a Virginia book I got in Charlottesville

Playing with Wikipedia, I wrote the little article on a judge of the W.D. Va. named Alexander Rives, who was the brother of William Cabell Rives, who was the grandfather of Amelie Rives, whose marriage to John Armstrong Chanler is the subject of Archie and Amelie: Love and Madness in the Gilded Age, by Donna M. Lucey.

Having read the book, I would say that it is a somewhat lame account of a fascinating story. I say lame by contrast with the account of the family of the Roosevelts in Mornings on Horseback: The Story of an Extraordinary Family, a Vanished Way of Life and the Unique Child Who Became Theodore Roosevelt, from about the same era, or by contrast with the account of Virginia history as for example in the Virginius Dabney book, which I have been reading.

Part of the book is about the litigation by Chanler over his sanity. He escaped from the asylum and hid out in Virginia, then turned up and had some kind of hearing in Virginia, where his lawyers included Micajah Woods, the Commonwealth's attorney in Charlottesville, another interesting character from that era. According to this account in the New York Times of Chanler's reappearance, his lawyers were Woods and John W. Daniel and Armistead Gordon from Virginia, and Augustus Van Wyck from New York.

Ms. Rives was kin somehow to Thomas Nelson Page, another well-known Virginia lawyer, who was a co-author of at least one book with Gordon, who like Woods was a president of the Virginia Bar Association.

The General Assembly has spoken

In Southwest Virginia, as someone told me a while back, Judge Pat Johnson got the circuit court job in the 29th circuit, Greg Matney from Tazewell County got the general district court job, and nobody got Judge Farmer's job on the juvenile court, which may mean that he gets to keep it until next year.

And, John Cook got in for Lynchburg circuit court, along with Ludwig and Wilson up in Staunton and Harrisonburg. Those were the ones I was following.

Evidently, they punted on the State Corporation Commission, plus I can't tell how many of the local judgeships, besides the juvenile court position in the Dickenson/Buchanan/Tazewell/Russell district.

But, they did find time to commend Judge Wood, and rightly so.

Virginia wins again

Today in Virginia v. Moore, the Commonwealth won before the United States Supreme Court. In an opinion by Justice Scalia, with Justice Ginsburg concurring separately in the judgment, the Supreme Court reversed the Virginia Supreme Court's decision in Moore v. Com., which reversed (unanimously) the Virginia Court of Appeals decision en banc in Moore v. Com., which (with Elder, Benton, Fitzpatrick, and Frank dissenting) reversed the panel decision in Moore v. Com., which reversed the conviction in the trial court.

The issue was "whether a police officer violates the Fourth Amendment by making an arrest based on probable cause but prohibited by state law." The Court's answer is no. So, Moore's conviction is affirmed.

Lyle Denniston at SCOTUSBlog has this post about the decision. AP writer Pete Yost has this article about the decision.

UPDATE: The commenter below says the conviction could still be overturned back in the state courts on state law grounds.

State law grounds, such as what, I wonder - the Virginia Constitution? Not likely. Justice Ginsburg's concurring opinion says plainly, "Virginia law does not demand the suppression of evidence seized by an officer who arrests when he should have issued a summons." If that's true, the proceedings on remand may not be very interesting.

On ex parte contact with ex-employees

I read the opinion by Judge Kiser in Bryant v. Yorktowne Cabinetry, granting summary judgment in a Title VII case.

The opinion referenced an earlier decision by Magistrate Judge Urbanski that I missed. In this earlier Bryant v. Yorktowne Cabinetry, Judge Urbanski denied the defendant's motion for an order prohibiting ex parte contact between the plaintiff and the defendant's former employees, distinguishing the earlier decision by Judge Sargent in Armsey v. Medshares Management Services, Inc., 184 F.R.D. 569 (W.D. Va. 1998), based on the plaintiff's representation that "that she does not intend to impute liability on [the corporate defendant] through the statements, actions or omissions of [the former H.R. person] or other former employees, but was simply seeking to discover the facts of the case, including the identities of persons involved." In Armsey, the purpose of the ex parte communications was to obtain facts from them that would be binding on the defendant for purposes of establishing liability.

Interesting.

I saw an appeals court judge on the street today

She said, put that on your blog.

And why not? That doesn't happen every day, or even every year.

Last year, my wife saw this judge and her gang one afternoon, and she told me later that family was having more fun than anyone else at the Homestead that day. Good for them.

On concealed weapon permits

This article in the Bristol paper makes it look like Judge Freeman is adding some extra-statutory factors in his disposition of concealed weapon permit cases in Smyth County.

The article didn't say why the two guys over age 75 decided now was the time to get a permit. It did say the Court of Appeals reversed the Circuit Court in one case (the case is online but the opinion is not) and that Senator Puckett, who has already derailed the reappointment of District Judge Farmer because of "complaints" about him, has received complaints (and made a complaint) about Judge Freeman.

I never heard of Senator Puckett as judicial watchdog before the Democrats took the Senate, why is that I wonder? From what I know of him, I'd say he's trying to do the right thing, but he ought to caucus privately with somebody like Del. Joe Johnson about matters such as this.

Important decision for small business

In Jennings v. Kay Jennings Family Limited Partnership, issued last week, the Virginia Supreme Court took on for the first time the meaning of the requirements to bring a derivative action under Va. Code 50-73.62.

That section says: "A limited partner may bring an action in the right of a limited partnership to recover a judgment in its favor to the same extent that a stockholder may bring an action for a derivative suit under the Stock Corporation Act, Chapter 9 (§ 13.1-601 et seq.) of Title 13.1. Such action may be brought if general partners with authority to do so have refused to bring the action or if an effort to cause those general partners to bring the action is not likely to succeed. The derivative action may not be maintained if it appears that the plaintiff does not fairly and adequately represent the interests of the limited partners and the partnership in enforcing the right of the partnership."

In the Corporation Act, the relevant statute, Va. Code 13.1-672.1, provides: "A. A shareholder shall not commence or maintain a derivative proceeding unless the shareholder:

1. Was a shareholder of the corporation at the time of the act or omission complained of;

2. Became a shareholder through transfer by operation of law from one who was a shareholder at that time; or

3. Became a shareholder before public disclosure and without knowledge of the act or omission complained of; and

4. Fairly and adequately represents the interests of the corporation in enforcing the right of the corporation."

At the request of both sides, the Court in Jennings looked to the discussion of the federal rule dealing with derivative actions, FRCP 23.1, as discussed in Davis v. Comed, Inc., 619 F.2d 588 (6th Cir. 1980), and like cases - and so it did, which in itself is interesting.

The trial court's decision to deny standing was affirmed, because of the would-be plaintiff's adverse economic interests, even though not directly related to the claim at issue, and because the other owners opposed the litigation, even though the other owners were few. The Supreme Court rejected the plaintiff/appellant's arguments against the way these factors were analyzed.

I think this decision will apply to corporation cases under Va. Code 13.1-672.1, although that Code section contains an additional substantive element, that the shareholder "[b]ecame a shareholder before public disclosure and without knowledge of the act or omission complained of." This provision is not in FRCP 23.1, and not to my knowledge in any version of the Model Business Corporation Act.

The significance of this decision, viewed through the prism of the latest cases where I am dealing with these issues, is that the shareholder who breaks off to go and compete against his old company should not be allowed to use derivative actions as a weapon of competition. The innocents who are not out stealing the business from the company would not be similarly disqualified from standing to proceed with the derivative action.

More Brownlee articles

Here are other articles about John Brownlee moving on, from the BLT, Rocktown Weekly, the Roanoke Times, the Richmond paper, and The Hook.

I discussed this over breakfast at Bodo's with Dana. She said that if he runs in 2009, she will let me put up a sign for him in the front yard.

Where's Waldo?

We're in Charlottesville this weekend, but didn't make it anywhere near the Rotunda, or wherever it is that Waldo Jaquith does his webmastering.

Instead, we're roughing it out here at the Boar's Head, up from Birdwood.

Years ago, I was playing golf with Scott Michaux at the newly-opened Birdwood course, when he made his first eagle on the second hole or whatever is the first par 5 alongside the lake, but he said the joy of the moment was somewhat dulled by the fact that I scored a 12.

If you're quick enough, you can check out this latest column from Young Scottie.

UPDATE: On Saturday, we went down to the Grounds, and ambled through all ten of the Pavilion gardens, where all was in bloom, and in the process snuck behind "Hotel A," which is where Waldo J. actually works.

And that's good, one less thing - no interruptions over there from Cavalier Man on Saturdays in the fall - like that time he smote the Yellow Jacket in the Dome Room, with the aid of The Coach.

Brownlee to resign

The Roanoke paper reports that John Brownlee is moving on from his position as U.S. Attorney. The article does not say what he plans to do next.

End the moratorium

The Supreme Court has ruled on the lethal injection case that has been holding up death penalty cases in Virginia and elsewhere, the opinion issued today in Baze v. Rees (argued on January 7) is here. And, the vote was 7-2, or maybe it was 2-1-2-1-1-2.

So, I guess the Governor's moratorium, based on the pendency of Baze, will be undone.

UPDATE: Undone it was, according to the Attorney General, Bob McDonnell, who says this:

“The Supreme Court has rejected a procedural challenge to Kentucky’s administration of lethal injection. Now that the Court has ruled, the Governor has rightly lifted his moratorium on executions in Virginia. This office will continue, as always, to defend the Commonwealth's authority to carry out the sentences handed down by Virginia courts, and the constitutionality of Virginia’s duly enacted statutes.”

The "coalfield" article in today's WSJ

I've seen a few articles like this one in other places. It begins: "The race for the Democratic nomination hinges on a handful of states where coal is still king," and goes on to make some point about the Virginia City power plant.

Not much going on here

I've got the trial coming up in June in the Buchanan County RICO case, and so it consumes much of my waking hours.

But - I have written a few more Wikipedia entries. Some of them are on this partial list of delegates to the Virginia Constitutional Convention of 1901-02. A more complete list of the delegates is here.

That Convention included a high-powered bunch of past, present, or future U.S. Senators, Congressmen, Governors, judges of the Virginia Supreme Court and lower courts, Attorneys General of Virginia, and more than a half-dozen Virginia State Bar Association presidents. It was, so far as I can tell, a collection of the best and the brightest of Virginia's lawyers, for that time. The far Southwest Virginians included Rufus Ayers, Preston W. Campbell, James B. Richmond, and Henry Carter Stuart, plus a Gillespie from Tazewell, a Lincoln from Marion, a Summers from Bristol, and Judge Orr from Lee County. They got together for the main purpose of doing away with the voting rights of black people. They accomplished their purpose by means of the literacy test and poll tax, and the like. When they were done, figuring that black voters would be opposed, they declared the new Constitution ratified, without a vote of the people.

And, racism was only part of it, the other part was to keep down the Republicans and the ex-Readjusters who had been getting the black vote.

I guess I knew all that, but it seems more real to me than before I started picking at it.

Wise County mountain lion?

Somebody sent these to my dad, with this note:

"This lion was hit between Cherry Reservoir Road and High Knob area (near Wise, VA) by a car. Game and Fish had to come and put him down.

He charged at the Fish and Game guy in the process. Look at his PAWS!"

I don't know whether this is true, or just one of those Internet deals.

A while back, I posted here with a link that still works to a piece about mountain lion sightings in Southwest Virginia.

There's no word yet on whether the lion was in town for the latest hearing on the Virginia City power plant, or if he was en route to see the animal lobbyists in St. Paul or Clintwood.

UPDATE: In the comments, Carl Kilo has forwarded the news article from the Coalfield Progress showing the lion story was a hoax debunked on Snopes.com - a real cat but from Arizona. Ah, the joys of the Internet.

SECOND UPDATE: Brian Peterson in the comments says the cat wasn't in Parkersburg, before it wasn't in Wise.

Stuff I think I know about summary judgment

I know this:

"Corroboration is not required to defeat summary judgment. See, e.g., S.E.C. v. Phan, 500 F.3d 895, 909-10 (9th Cir. 2007) (district court erred on summary judgment by disregarding evidence that was “uncorroborated and self-serving”); Shekoyan v. Sibley Intern., 409 F.3d 414, 425 (D.C. Cir. 2005) (“corroboration of [plaintiff’s] version of the facts was irrelevant to the summary judgment analysis.”); Lee v. American Intern. Group, Inc., 31 Fed. Appx. 764, 765 (2nd Cir. 2002) (“The fact that plaintiff had no corroboration and that Miller denied it were of no significance on defendant’s motion for summary judgment.”)."

This I wrote in a brief to the Sixth Circuit, in response to where the District Court judge wrote this:

"Plaintiff has not produced the alleged text messages and, although she testified that she showed the text messages to “everybody” and a “ton of people” including family, friends, and coworkers (both at Applebee’s and at her second job), she has not produced an affidavit from any of those persons."

I may not win the appeal, but at least I got that off my chest.

Wise County Circuit Court opinion from April 1, 1991

Dear Counsel:

This is a case of unique species,
not stare decisis, but stare feces.
The court had serious fun with these complex issues as it spoke,
but this opinion, signed the first, is no April Fool joke.

The court considered the entire record as a whole,
and reviewed counsel arguments as they were told.
This is a feeble attempt at judicial humorous prose.
The findings of fact and conclusions of law disclose:

This case involves a V.E.C. "first impression" appeal
by an employee who said a rude word unreal.
Fired for misconduct connected with his job
by a C.E.O. who judged him an insulting insubordinate slob.

Claimant, Walter Cooper, by name
a 20-year employee of "the Pig", a grocery chain,
missed work due to a workers compensation claim,
and had attempted to organize the labor union game.

His four doctors could not agree
on when his exact return day would be.
So to determine his return to work position
management called Cooper to a 2 1/2 hour "Inquisition".

Cooper arrived at the private meeting with management three:
the C.E.O., personnel mg'r, store mg'r, and he.
Claimant intended to return to work right now,
but the C.E.O. flaunted his power somehow.

The C.E.O. quarreled about Cooper's union organizing smut;
told him to return to work, and "keep his mouth shut";
repeated several demands for claimant to quit -
to all of which Cooper replied, "you're full of shit".

Cooper was fired on the spot,
and V.E.C. benefits he was granted not.
Punish him - wash his mouth out with soap,
but don't hang him with a pink-slpi rope.

It would certainly be a legal mistake,
if one vulgar word would misconduct make.
This expression does not show flagrant disrespect,
nor deliberately defy proper authority I suspect.

Truth is a defense to the tort of slander,
but please forgive me for I meander.
Every dog is entitled to one lawful bite,
so why not allow one naughty word so slight?

If one indelicate word stirs the ire
that's no cause for a hard-working employee to fire.
Union activity is allowed by Federal law,
and is not a legitmate reason to withdraw.

Webster defines "shit" as "foolishness" or "nonsense".
Such an editorial makes good common sense
to describe the C.E.O. as "full of" nonsense,
when he attempts to gag the union at Cooper's expense.

Unions displease some executive bosses,
but not employees who carry their crosses.
V.E.C. and "the Pig" hide behind a dirty phrase
to conceal their prejudice against a union craze.

The V.E.C. conclusion is unsupported by substantial and/or simple evidence
for this reasonable judicial mind accepts a difference.
Here the questions of law are also interpreted by this magistrate,
and the facts do not constitute misconduct, nor insubordinate.

This court finds in favor of the claimant,
and orders the V.E.C. to Cooper make payment.
Counsel for Cooper shall pen a final decree,
and deliver it accordingly for entry to me.

Sincerely,

J. Robert Stump
Judge
(footnotes omitted)

Judge Stump was affirmed on appeal. See Kennedy's Piggly Wiggly Stores, Inc. v. Cooper, 14 Va. App. 701, 419 S.E.2d 278 (1992).

He said it

"Mr. Jay, is the government running with the fox and chasing with the hounds?"

Justice Scalia, at the oral argument in U.S. v. Clintwood Elkhorn Mining.

Death penalty moratorium?

When I wrote this post, one of my auditors declared that Governor Kaine would not stop executions in Virginia.

But, he has now - for a while - and for a pretty good reason.

On the future of the federal courthouses in the W.D. Va.

In March, the Danville paper had this article, speculating on the future of the federal courthouses in Danville (and Big Stone Gap).

The article quotes Libby Sharp from the clerk's office in Big Stone Gap.

The article says in part:

"In 2007, a congressional committee conducted a comprehensive study of U.S. District courtrooms to determine how often they were being used and for what.

"Many, many courts across the United States were (under consideration for) being closed," said Libby Sharp, deputy clerk in charge of the Big Stone Gap district courts.

Local attorney Lewis Goodman, who works at the Danville Regional Law Center, said, "Danville is high on the underutilization list and is threatened."

WHY 341 MEETINGS WERE IMPORTANT
The 341 meetings constituted about 10 percent of the usage of the building, according to local legal experts.

So if the government does want to close down underutilized courthouses, losing them pushes Danville up the list.

"Ultimately there's a concern…a reduced amount of 341s in Danville will reduce (overall) caseload (which) will justify closing the courthouse," said Mark Williams, a bankruptcy lawyer with Williams, Morrison, Light and Moreau.

Danville wouldn't be the only court in the district. Big Stone Gap managed to escape that fate last month.

Sharp said Big Stone Gap was facing being shut down because there was no resident judge and the district didn't have as many filings as it used to.

But after consideration and a plea from the court, the committee in charge unanimously decided to keep the system in Big Stone Gap.

Caseloads have dropped throughout the region, according to John Corcoran, clerk for the Western District of Virginia. That includes Danville, but doesn't make it unique, he said."

Daniel Gilbert's series on judicial selection

Here are the articles, worth reading:

Virginia Legislators Have Major Role In Judge Selection, March 30

Virginia Judge Selection Process Dates To Reconstruction, March 30

Political ties often key for attaining position on the bench, March 31

Virginia judge-selection process linked to politics, March 31

Data Will Help Lawmakers Determine Judges Qualifications, April 1

Local Bar Associations Felt Neglected Over Endorsements, April 1

This group of articles is pretty well-done, and quotes many people, including me.

The lamest comment attributed to our representatives in Richmond in these articles was from Senator Wampler, if this sentence is accurate: "A weakness of the merit-based system, Wampler believes, is that it allows candidates who feel 'lukewarm' about being a judge to be considered in the process. 'You don’t want somebody lukewarm' on the bench, he said." I know he has wrestled sometimes with getting judgeships filled, but I don't think this came off the way he intended.

Also, it might be concluded from Gilbert's articles that the likelier "lukewarm" judges are the ones selected because of their connections rather than their interest and aptitude, and so they don't seem to particularly enjoy the work or the isolation of the bench. There just might be some of those.

The Lawson girl who wasn't born when I started with the firm

MML's youngest is the new Miss Abingdon. Well done, Maggie.

He said it

"The qualities of a good prosecutor are as elusive and as impossible to define as those which mark a gentleman."

Robert H. Jackson, in his famous speech on The Federal Prosecutor.

The book of Minors

I eventually did receive the reprint of The Minors of Virginia, published in 1926, by John B. Minor. Of course, that is not the John B. Minor, who died thirty years prior.

But, he is in there, along with Virginia Minor, William Lewis Herndon, Matthew Fontaine Maury, John Minor Maury, William Andrew Quarles, James Minor Quarles, Charles Minor Blackford, and William Minor Lile.

And, Charles Landon Carter Minor, the head man of what became the University of Maryland, and then what became Virginia Tech, where he got in a fistfight with James H. Lane.

I liked the reference to Judge Quarles of Tennessee, whose report to the tax assessor included ten children and one skillet.

On broadband in Rose Hill and elsewhere

This article about the coming of broadband to Rose Hill in Lee County features my sister, Joan.

The article says in part:

"The nuts and bolts of how broadband came to Rose Hill is a story of leveraging local funds—cash from the state Tobacco Indemnification and Community Revitalization Commission charged with developing Virginia’s tobacco country—to draw in federal grant monies from the U.S. Department of Agriculture’s rural Internet program. The Rose Hill model is being replicated down the road a piece in Ewing (population 436), and the even smaller coal-mining community of St. Charles (population 159)."

Another book

I've been reading Chief Justice: A Biography of Earl Warren, by Ed Cray.

The funniest thing in there, I thought, was the statement attributed to Justice Brennan upon his selection to the Supreme Court, likening himself to a mule at the Kentucky Derby: "I don't expect to distinguish myself, but I will benefit by the association."

More on pleading fraud with particularity

Last year I wrote this post.

So, what good is it?

Look at this opinion and then this opinion. To my own way of thinking, that's how you want to use Rule 9 of the Federal Rules, which rule Middleditch and Sinclair says matches what Virginia law requires. Who knows what will come of that particular case, but it is much different from what I thought at the beginning.

Then again, sometimes I make these same arguments, and a judge somewhere says, nicely done, now go ahead and file your answer and let's get on with it.

Chief Judge Jones on the U.S. Attorney's blanket approach to crack resentencings

This VLW post notes this footnote in U.S. v. Herndon:

"This district is reported to have the fourth largest number of defendants who qualify for a reduction in sentence under the U.S. Sentencing Commission’s policy on retroactivity of the amended crack cocaine guidelines. Unfortunately, it appears that the United States Attorney for this district is objecting to reduction in every case, even those which provide for a reduction in sentence of only a few months. While the Department of Justice opposed the retroactivity of the amended guidelines, once the Sentencing Commission unanimously decided on retroactivity—a decision which Congress has not overruled—a per se objection to reduction does not serve the public interest. For example, the court is required to consider the public safety in determining whether to reduce a particular sentence, see U.S. Sentencing Guidelines Manual (“USSG”) § 1B1.10 cmt. n.1(B)(ii) (Mar. 3, 2008), and the government’s blanket objection in all cases does not assist the court in making that decision, and, in fact, hinders it."

"A horrible embarrassment to the profession"

The Washington Post writes here on the funny thing that might happen because court-appointed lawyers in Virginia are too slack to apply for all that cap-waiver money: it will disappear.

It says in part:

"The General Assembly established the fund so Virginia could shed its label as the country's lowest-paying state for criminal defense lawyers. In the eight months since the fund was established, defense lawyers statewide have claimed about $640,000, or 8 percent, of the money.

The lack of interest is baffling defense advocates, who argued for decades that the money was needed to ensure that poor defendants get the same quality defense as those who can afford a lawyer."

More books

Last weekend, at the in-laws, I read The Hills of Tuscany by Ferenc Mate, an easy and fun book, and, I must confess, a recent offering from Maeve Binchy. To paraphrase Donald Rumsfeld, when you go to the in-laws, you read the books they have.

In the mail this week came The Other Venice: Secrets of the City by Predrag Matvejevic, a sort of mystical work with great photographs, and, inevitably, Chow Venice: Savoring the Food and Wine of La Serenissima, Second Edition.

From the library today, Dana got for me Jonathan Alter's The Defining Moment: FDR's Hundred Days and the Triumph of Hope and some other book I haven't looked at yet.

On lawyer poets, including Virginia's own

This article is about lawyers who are poets.

Virginia had a notable one in Armistead C. Gordon, who was among other things a president of The VBA. You can download free from Google Books some of his work, including this book and this book.

Cousin Mara in Africa, Mark II in soap opera

My cousin Mara, daughter of Dad's sister Lois and step-daughter of Bristol coal lawyer Tim Lowe, has this blog of her experience in Africa, working at a pediatric HIV clinic.

Unrelated to this, MML's son Mark II has landed a role in One Life to Live.

On Florida and Michigan

Watching the events unfold in the campaign, I have had cause to recollect that the Supreme Court has already ruled in Cousins v. Wigoda, 419 U.S. 477 (1975), and Democratic Party of U.S. v. Wisconsin ex rel. La Follette, 450 U.S. 107 (1981), that the Illinois state courts got it wrong "in according primacy to state law over the National Political Party's rules in the determination of the qualifications and eligibility of delegates to the Party's National Convention" with respect to the dispute over the seating of the Illinois delegation to the Democratic National Convention and, with respect to the Wisconsin delegation to the 1980 Democratic National Convention, that Wisconsin could not "compel the National Party to seat a delegation chosen in a way that violates the rules of the Party."

The Cousins v. Wigoda case is another of which some tales are told in John Tucker's book, Trial and Error: The Education of a Courtroom Lawyer, one of my favorites.

So, on the face of things, there is no constitutional impediment to the enforcement by the National Committee of its rules against Michigan or Florida for conducting their primaries too early - which must be why there have been no lawsuits before now. I note that at least in the Illinois case, the impression I get is that the litigants filed the case before tame state court judges to get their injunction, and the federal courts had no role until the cases wert all the way through the state appeals courts.

Death penalty verdict here in Abingdon

Here from the Roanoke paper, here from the Virginia Tech paper, and here from the Richmond paper, are stories about the Washington County jury's recommendation of the death penalty in the case of William Morva. The case was moved for trial from Montgomery County, and tried by the Montgomery County prosecutors.

I can't remember the last time someone was sentenced to death in a case from here in the 28th Circuit, unless it was the late Lem Tuggle, Governor Kaine's old client, one of the famous escapees from Mecklenburg. Or, Arthur Jenkins.

Boo, hiss

The Virginia House of Delegates and the Senate of Virginia adjourned sine die last night without picking any more new judges for the year. Sine die means "without any future date being designated (as for resumption)." They might come back for a special session in April, or they might not.

That should be barred by the Constitution, the legislature should not be allowed to leave town until all the courts have the full complement of judges every year.

For the special session, the plan is that "no bill or joint resolution other than (i) those relating to transportation; (ii) joint resolutions affecting the rules of procedure or schedule of business of the General Assembly, either of its houses, or any of its committees; (iii) resolutions regarding the election of judges; (iv) commending and memorial joint resolutions; or (v) joint resolutions confirming appointments subject to the confirmation of the General Assembly shall be offered in either house."

People ask me what I hear about the judgeships in Southwest Virginia. The gossip I hear is that in the 29th, General District Court Judge Pat Johnson will be moved up to the Circuit Court if the legislature acts, but Juvenile District Judge Farmer might be reappointed by the circuit court judges for another year if the legislature doesn't act. Or, both.

It's . . . Agee

President Bush has nominated Virginia Supreme Court Justice G. Steven Agee for the seat vacated by Michael Luttig on the U.S. Court of Appeals for the Fourth Circuit, following the failed nomination of Richmond lawyer Duncan Getchell. Unlike Getchell, Agee is on the list to which both Senators Webb and Warner agreed, of names for the position.

Justice Agee is from Salem, and he was a Republican legislator in the General Assembly and a lawyer with the Osterhoudt firm before he became a judge. Per Westlaw, Justice Agee argued a few cases before the Fourth Circuit, but his cases included Patterson v. Shumate, which he argued before the U.S. Supreme Court (and not on the side of Mr. Shumate).

Despite the increasing proximity to lame duck status for President Bush and his nominees, the Senate ought to move ahead with Agee's nomination, particularly since it will probably give Senator Webb's buddy, Governor Kaine, a chance to appoint another Democrat to the Virginia Supreme Court.

The Richmond paper has this story, noting that Webb and Warner both gave statements of approval. BLT has this post. Confirm Them has this post, with a few comments, including one that says: "Now nominate Lemons too, George. Cripes almighty. Unreal. Of course, he finally caves to the list when it'll do no good. As I've said many times before, Nixon, Truman & Harding just have to be shaking their heads that they can't play poker with this Administration."

The Roanoke paper has this lame article, which concludes inanely "Widener said he will step down once his successor is confirmed." Such may have been Judge Widener's intention, before his death in 2007.

Agee joins Robert Conrad, Steve Matthews, and Rod Rosenstein, the other three lawyers with pending nominations to the Fourth Circuit.

Wednesday with Judge Turk

I went to Roanoke today for a conference with Judge Turk, he was in good humor and there were no great issues at stake, and so it was a good day.

And, while I was there, I drove by that new museum, for the first time. What a spectacle it is.

Another book

I've been reading Lightning Man: The Accursed Life of Samuel F. B. Morse, which is full of interesting stuff.

Morse was a flighty, depressed and most often broke artist, deeply affected by religion, patriotism, and anti-European and anti-Catholic sentiment, who had little to do with his children. That's from the first third of the book.

He went to Naples, Italy, and complained about some disgusting cake the natives ate there, with tomatoes and little fishes and black pepper on top, which the author observes may have been the first American account in writing of anchovy pizza.

The idea of the electric telegraph occurred to him while crossing the Atlantic in 1832 with, among others, the American ambassador to France, Virginia's own William C. Rives, the brother of Alexander Rives, who (39 years later) became the judge of the U.S. District Court for the Western District of Virginia.

Trying to channel the spirit of an old Big Stone Gap lawyer

I've got a case where the dude I need to call is Joshua Fry Bullitt, Jr.

Unfortunately, he died in 1933.

I thought his story was pretty interesting, but as you can see, some others disagreed and tried to whack that article about him.

If you didn't know it, counting Bullitt there are 13 past presidents of The Virginia Bar Association on Wikipedia, including 9 former Virginia Supreme Court justices, 5 former members of the House of Delegates, 4 former members of the Senate of Virginia, 3 former members of the U.S. House of Representatives, 2 former members of the Confederate Congress, 1 former U.S. Senator, 1 former U.S. Attorney - and Bullitt.

The Larry Sabato of Pennsylvania

Up in Lancaster County, where I went to high school and worked one summer in a law firm, there is Franklin & Marshall College, which has its own Center for Politics and Public Affairs, headed by this guy. Instead of being called Larry, he is Terry - Terry Madonna, can that be his name, really?

I'd say he will be busy for the next two months until people get bored of talking about the primary in that particular Commonwealth, set for April 22.

More books read in 2008

1. The Colonel: The Life and Legend of Robert R. McCormick, 1880-1955, by Richard Norton Smith.

2. Mornings on Horseback: The Story of an Extraordinary Family, a Vanished Way of Life and the Unique Child Who Became Theodore Roosevelt, by David McCullough.

These are both interesting and fun reads, in this election year. McCormick was the oddball publisher of the Chicago Tribune, who never quite overcame his peculiar family life, while Roosevelt was just about as odd and equally affected by his family.

Also, I read from cover to cover (but for the poetry, AND including the sideways cartoons) the latest edition of Waldo's Own Virginia Quarterly Review, some 200 pages or more. Does that count on the 50-book challenge, I wonder?

I also read Victory Square, by Olen Steinhauer, which was a bit of a mistake, since it was the fifth in a series of five, not having read 1, 2, 3, and 4.

On the need for weaker medicine

I've been mulling over the 53 pages of the Virginia Supreme Court's decision in Jaynes v. Com.

There were two opinions. The majority opinion written by Justice Agee concluded that the spammer's conviction should be affirmed, for reasons including his lack of standing to complain about the potential overbreadth of the criminal statute. The dissent by Senior Justice Lacy concluded not only that the spammer could assert the First Amendment rights of others, but also that the statute was overbroad and unconstitutional as applied to those rights of others.

I think that the dissent makes some good points about standing, and that the majority's commercial/non-commercial distinction seems somewhat poorly-reasoned. Even so, the taboo against representational standing is much stronger across the board in Virginia jurisprudence than in federal court, and the majority's conclusion strikes me as consistent with that approach.

Moreover, the merits of the case strike me as indistinguishable from the Hicks case, where the U.S. Supreme Court held that "the Virginia Supreme Court should not have used the 'strong medicine' of overbreadth to invalidate the entire RRHA trespass policy." The dissent in the spam case would overprescribe the strong medicine once again.

Justice Lacy tries to wrap the flag around her First Amendment argument, pointing out that the Internet needs to be wide open because people use it for the classic kinds of political speech. Yeah, but spam strangles that speech. Half the unsolicited political e-mails I get are trapped by the spam filters, with the Viagra ads and the Nigerian investment offers.

Another LeClairRyan merger

Here it says that LeClairRyan is merging with Wright Robinson Osthimer & Tatum.

Just in case you were wondering if that sort of thing was still going on.

What did the ABA say about those other Fourth Circuit nominees?

It says here that the ABA gave the well-qualified rating to Fourth Circuit nominees Robert Conrad and Rod Rosenstein, but Steve Matthews got the dreaded "Q/NQ," as in there was a split vote, and the minority thought the rating should be "not qualified."

On Boucher, Superdelegate

This commentary by Paul Goldman reports that somebody has been complaining that Rick Boucher ought to vote for Clinton, since she carried the Ninth District.

Sure, as soon as Jennifer McClellan and the rest of the Virginia supers where Obama carried the vote change their endorsements - which they say they will not.

Is this one for Bill O'Reilly, Michael Savage, or Lou Dobbs?

The Bristol paper reports here that an illegal immigrant from Mexico was sentenced by Judge Lowe of the Washington County Circuit Court to 26 life terms in prison, one for each month that he molested a young girl.

The article does not say which Southwest Virginia employer or employers had been paying him, right here in Washington County.

Also today came published reports such as this one, indicating "Immigrants in California, including those without documents, are 'far less likely' than the native-born to end up incarcerated for crimes, according to a study released Monday by the Public Policy Institute of California."

That report is available here.

One for the Chamber of Commerce

Over the weekend, the Bristol did a front page story on the continued use of outhouses in Southwest Virginia.

I remember the outhouses that were on the farms where my dad grew up and where my mom grew up. The latter was referred to as Grandpa Conrad's "office."

Also, I recall there was one at the old band director's cabin, wherever that was, complete with instructions in the form of a bit of verse.

Matthews, you jerk

Last night, Chris Matthews slipped a cog and blistered some mild-mannered Texan standing in for the Obama campaign about what legislation has Obama gotten passed, ever in his life.

One answer is that Obama, having been a legislator for several years longer than has Ms. Clinton, got his fair share of bills passed in the Illinois state legislature, during the period when he was in the majority party and during which time he enjoyed a favorable relationship with the Senate leader, Emil Jones - or so said that Obama book by David Mendell I read earlier in the month.

As it says here on the Waldo-styled GovTrack website, "Hillary Clinton has sponsored 354 bills since Jan 22, 2001, of which 307 haven't made it out of committee (Extremely Poor) and 2 were successfully enacted (Average, relative to peers)."

Of course, seniority and majority have more to do with the outcome of the "Dance of Legislation" than anything else, and so it is unsurprising that so few bills sponsored by Ms. Clinton have passed.

On counting to 2

In U.S. v. Gardner, where the federal statute required 2 felony drug convictions for a life sentence, Chief Judge Jones counted only one, concluding among other things that the defendant's fake dope conviction did not count.

Don Shula's first coaching gig - 50 years ago in Charlottesville

Doug Doughty has this fun piece about the 50th anniversary of the employment of Don Shula as an assistant football coach at the University of Virginia in 1958, ten years before he went to the Super Bowl as coach of the Colts and fifteen years before his Miami team finished its undefeated season, about which team I have written here and elsewhere.

Should Virginia lawyers be subject to random audits of trust accounts?

This article in the Norfolk paper says that this year's VSB President Howard W. Martin, Jr., favors random audits of lawyer trust accounts in Virginia, as has been done in North Carolina for 23 years.

I'm in favor, on two conditions: (1) no dues increase, and (2) no discrimination against solos and very small firm lawyers (meaning firms smaller even than ours).

Lack of due diligence?

It has been reported here and elsewhere that Judge Kelley of the E.D. Va. is going to resign because: (1) federal judges spend much of their time dealing with icky criminal cases, and (2) partners in D.C. law firms get more money.

These obscure facts must have come as shocking revelations, whenever he discovered them during his brief tenure on the bench. I'm thinking Chief Justice Roberts should not have sent Kelley that copy of his year-end report.

More on the Exam Dream

Previously, I've written about The Exam Dream, my own personal version of which most commonly involves Lynda Butler, who at different points in her life taught first calculus and later the Rule Against Perpetuities, and such other and further details as Old Cabell Hall and no bluebook.

Now, she is the acting Dean of the Law School, as the result of the musical chairs since Gene Nichol quit. Whether this will have an effect on my subconscious, only time can tell.

The funny thing is, Professor Butler was not especially cruel or unusual way back when; in my last dealings with her, she liked my paper on impact fees, even though subsequent history has shown my "intermediate scrutiny" thesis based on Nollan v. California Coastal Commission to be mostly wrong, after the Supreme Court's 2005 decision in Lingle v. Chevron.

A few I missed

Overlawyered had this post on the Virginia law of sangria, now subject to an amendment as part of a broader fix of the ABC laws (and which our own Del. Johnson voted against) and this post about a lawsuit against a golf course in Virginia Beach, brought by a passing driver struck by an errant shot - plus a link to this Novak story that says Obama will pick Edwards as AG.

This Professor Berman post discusses an article about how the brunt of the crack cocaine resentencings will fall on Virginia. Related to that topic, the W.D. Va. has a new set of guidelines for handing such matters.

Pleaded v. pled

Last month, David Lat had this post, on the topic of which is the more correct usage, pleaded vs. pled, as the past tense of the verb, "to plead."

On the state court side, Westlaw gives the impression that Chief Justice Hassell, Justice Kinser, Justice Lemons, Chief Judge Felton, Judge Kelsey, Judge Humphreys, Judge McClanahan, and Senior Judge Coleman prefer "pled," but Judge Elder has more frequently used "pleaded," as did former Chief Justice Carrico.

The U.S. Supreme Court prefers "pleaded." Brian Garner says "pleaded" is more common.

The other day I got an opinion from the W.D. Va. that used both, and determined that the same judge has used both in 24 different opinions, which leads me to conclude that he would say the point is pointless - and not the first from me.

Late notice

Nobody told me that the dog from Bill Bradshaw's law office passed away one year ago. I've never been there when she wasn't.

I have a story about that dog, but I can't tell it, except to say that she earned her keep.

Everything wrong with Bill Clinton in one interview

Here he says all these things:

Bill Clinton dismisses the outcome of the voting in the caucus states, because the caucus participants are "disproportionately favor upper-income voters who, who, don't really need a president but feel like they need a change." I don't even know what that means, but it sounds like hypocrisy if the same standard of "disproportionateness" is not applied to the super-delegates or even more broadly to the unfairly selected delegates from Florida and Michigan.

Bill Clinton claims that Hillary Clinton has been the underdog since the Iowa caucuses because of the opposition of "a lot of the politicians, like Senator Kennedy" and because lack of funds, all in spite of which she managed to get "plenty of delegates on a shoestring." But Hillary Clinton has more politicians, including Bill Clinton himself, and thus she leads in the super-delegate count. The "shoestring budget" was more money than any other candidate but Obama ever had to spend, and two or three times what federal funding would have provided.

On the MSNBC reporter who was suspended for what he said about Chelsea Clinton, Clinton said that if the reporter had "made a racial slur against Senator Obama, he would have been fired." Lots of people think Clinton himself made a racial slur by comparing Obama to Jesse Jackson instead of to John Edwards, when trying to make a point about recent campaigns that won in South Carolina but later came to naught. Or, maybe Bill Clinton is just stuck in the '80s.

On Ms. Clinton's protest over what was said about Chelsea Clinton, which included her threat to pull out of a debate on MSNBC, Clinton said that Ms. Clinton "just stuck up for her daughter, and for girls everywhere, and women everywhere, and it’s about time somebody did after a lot of the rhetoric we’ve been through in this election." I had understood that Clinton himself was a menace to girls and women everywhere. I mean, it can't be a coincidence that my good friend the old Democrat from over in Norton made sure to take his new wife out of the country, during the very same week that Bill Clinton was on the loose in Southwest Virginia.

Reading just now

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.

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.

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."

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.

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.

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.

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.

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.

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."

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.

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.

Twice as nice

Chief Judge Jones of the W.D. Va. issued opinions in two of my cases yesterday, this case and this one.

All was not lost, in either.

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."

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.

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.

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.

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.

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."