That thing adjudicated

In the latest VBA Journal, Judge Kelsey of the Court of Appeals has a somewhat provocative article on res judicata and Rule 1:6 as a response to the perceived defects of the Supreme Court's analysis in Davis v. Marshall Homes, Inc., 265 Va. 159, 576 S.E.2d 504 (2003).

And, I'm not sure that I entirely agree with it, which usually means that it doesn't fit with some cockamamie theory that I have been cooking up about a particular case.

Peer-to-peer network administrator convicted in W.D. Va. for pirating copyrighted material

The United States Department of Justice issued this press release detailing the conviction on Thursday in Big Stone Gap of a peer-to-peer network administrator for pirating movies and such.

The press release says: "The case is the first criminal conviction after jury trial for P2P copyright infringement. Dove’s conviction is the eighth conviction resulting from Operation D-Elite, a nationwide federal crackdown against the illegal distribution of copyrighted movies, software, games and music over P2P networks employing the BitTorrent file distribution technology."

President Bush to attend session of W.D. Va.

The Charlottesville paper reports here that President Bush will attend the naturalization event at Monticello on the 4th.

The insignificance of Miller-Jenkins

This article on Findlaw, titled "The Virginia Supreme Court Enforces Vermont's Custody and Visitation Order Regarding a Same-Sex Couple's Child: Why an Anti-Same-Sex-Marriage State Recognized a Same-Sex Union For This Purpose", points out that the recent Supreme Court case was decided on technical grounds, and even so came with a warning from the Chief Justice in his separate opinion that might be a preview of how he (if not others) would decide future cases on the merits.

On the right of the people to keep and bear arms

The Supreme Court decided today by a 5-4 vote in the D.C. v. Heller case, that the "people" in the Second Amendment include "all members of the political community, not an unspecified subset" and to "bear arms" was used back in the day to "refer to the carrying of weapons outside of an organized militia.

One for Kurt Pomrenke fans

Here are the father of the bride and the bride, his daughter Sarah, whom I think of as the little blonde Pomrenke girl.

Most places I go, from Grundy to Norfolk, somebody knows Kurt.

The vice of moderate legislation

Justice Kennedy's opinion for the majority in Kennedy v. Louisiana might inspire some legislators (like the ones we read about from Virginia and Tennessee) to reject moderation in matters governed by the Eighth Amendment.

The legislators might say to themselves, we all need to take the extreme view on this, otherwise the Supreme Court will get the wrong idea the next time it surveys the views of "society."

Papa Joe Smiddy documentary

It says here that U.Va.-Wise has released a documentary on DVD of the life and times of Joe Smiddy.

Here is one of the best Joe Smiddy stories.

Here is one place where you can buy a "Butter Beans" CD, which is mainly what I like to listen to when I am riding in Dad's truck. This bean story has the lyrics.

Using the VLW archives

In last week's Virginia Lawyers Weekly, Paul Fletcher posed this hypothetical:

"My client just got served with papers filed by a lawyer named Steven R. Minor with the firm of Elliott, Lawson & Minor in Bristol. I don’t know this guy. How can I get some information about him and his practice?"

One of his answers was to check the archives on VLW.

That could work, evidently those archives include my name in connection with 26 opinions.

A fellow I know in Charlottesville told me a while back that he often sees my name in Lawyers Weekly. I said yes, but not all of those cases are worth bragging about, such as the one where the Virginia Court of Appeals held that I didn't miss that deadline, after all.

Fourth Circuit rejects claim to school district's information distribution system for issue advocacy

In Page v. Lexington County School District, the Fourth Circuit in an opinion by Judge Niemeyer, joined by Chief Judge Williams and Judge Duncan, affirmed the entry of summary judgment on the section 1983 claims of a citizen who sued for equal access to the school district's "information distribution system" that the district had used to oppose legislation the plaintiff favored.

The amici supporting the appellee include the Virginia School Boards Association.

If you do Virginia appeals, you must read this

Steve Emmert has an article up these days on his site that I take to mean that the Virginia Supreme Court is cracking down on procedural defaults. Similarly, VLW Blog has this post quoting Justice Keenan, who acknowledged that more Virginia appeals are getting sunk on procedural defaults.

Norfolk paper comes to Wise County

This article about the power plant in the works at Virginia City quotes one side talking about the other as saying this: "wrong on so many levels." Actually, all sides say that about their opponents all the time.

Some of the discourse reminds me of my grandmother's opposition to the federal prison in Lee County - she didn't want a bunch of escaped federal inmates running up and down Route 58.

Vote on him, I dare you

The Asheville paper has this recap of the status of the nomination to the Fourth Circuit of Judge Conrad from North Carolina, who is not to be confused with the Judge Conrad from Virginia or the tough-guy actor.

Who leaked the Ahmad Bradshaw story?

The Bristol paper and others have discovered that Ahmad Bradshaw is in jail here in Abingdon, which prompted his old football coach at Bluefield to denounce whoever it was that caused this to get into the newspapers.

The Bristol paper reported this:

"Graham football coach and athletic director Doug Marrs adamantly stood by Bradshaw, calling the player’s legal troubles the direct result of a concerted attempt by 'individuals who build themselves up by making other people look bad.'

'It’s an attempt by an anonymous mole to discredit [Bradshaw],' Marrs said. 'I bet you cannot find out who released [the information to the police]. Have you seen anywhere where he violated his parole? It doesn’t make sense. It’s extremely complicated.

'All I can tell you is ... there’s animosity. It’s just … there are people who make it, I guess, their job to try to ruin to other people’s lives. That’s the way I see it.'

. . .

'I promise you this: Graham High School would not have retired [Bradshaw’s] jersey if we had thought he’d have done something that would discredit [Graham],' Marrs said.

'He truly does not deserve this. He doesn’t deserve this. And you know what? I did stuff when I was 12 or 13 years old [that] I could probably still be in jail for. But I never played in the Super Bowl. I don’t get people wherever jealous of me.'"

The Carbon Capture and Storage Early Deployment Act

This post considers the Carbon Capture and Storage Early Deployment Act, H.R. 6258, introduced by Rick Boucher, which provides for an industry-funded, non-government "Carbon Storage Research Corporation."

He said it

"So Mr. Obama, if you're going to call for 'the highest-speed broadband access' can you please stop pussyfooting around like just about everyone else and start acknowledging that that means getting a fiber strand strung to every building in America?"

Geoff Daily, Apprising

Santos, Santos, Santos

The Bristol paper reported here that Chief Judge Jones is trying to figure out the Supreme Court's decision in U.S. v. Santos, before deciding what to do in the case of the Lee County dentist.

Maybe the dentist's lawyer will sign up for this seminar, the ad for which says of Santos and Cuellar v. U.S.: "The Court's opinions vindicate the criminal defense bar's long and loud criticisms that money-laundering charges were being 'tacked-on,' 'added-on,' and threatened in order to induce pleas and rack up higher sentences."

On the late Harry Hall

This morning, Dana spotted a brief notice in the morning paper that Harry Hall has died.

Harry Hall is just about the best guy from Bristol I ever met. The deacon at St. Anne's, he was part of our marriage preparation, way back when, and a good friend of mine ever since. When he ended a mass, it sounded like the voice of Moses. He worked all the time, even when he was sick, like when there was a fire at the church and he just laughed at the idea that he should just be a cheerleader on the sidelines. He laughed at most everything, and made everyone else laugh with him. Seeing him in the church or out and about always lit me up.

I'll miss him.

Best U.S. Open story

I still like the story reported here and here and elsewhere about Tony Romo, Matt Lauer, Justin Timberlake, and a fellow from Nebraska with cancer, trying to break 100 on Friday at Torrey Pines. The dude from Nebraska shot 114 and savored it all, sounds like.

I probably can't break a hundred anywhere that doesn't have plastic grass and windmills. The last round of golf in May, though, playing captain's choice in Nancy Dickenson's Relay for Life tournament we made a lot of lengthy par putts and finished 10 from the back and 10 from the front (i.e., next to last at +1). Tim Hudson from over on the Tennessee side was playing behind us and said he thought we were going to break out the champagne when we got up and down for par on our first hole (from the wrong side of the creek).

And, the horse you rode in on

Here and elsewhere it says that Andrea Mitchell, from the gang of happy idiots at MSNBC, has apologized for her characterization of the people of Bristol, Virginia, on the occasion of the visit by Obama last week.

Another of that sorry bunch, Chris Matthews, will be at the Bristol library a few weeks before the election. His rant this morning, as I understood it, was that the United States is like the sinking Titanic, and voters will have to decide whether to stay on the ship with McCain or jump into the life boats with Obama.

The Fourth Circuit: fewer judges equals fewer arguments

Here is the take of one of the Volokh Conspirators on the state of the Fourth Circuit, still missing too many judges, and the subject of the cover story in this month's ABA Journal.

Sell assets, not stock?

In Andrews v. Browne, the Virginia Supreme Court held that the sale of 100% of the stock of a closely-held corporation is subject to the Virginia Securities Act.

That other Buchanan County case

The Supreme Court decided on Friday in Levisa Coal v. Consolidation Coal that Consol's lease did not give it the right to "store excess water" on the leased premises from coal mining on other property, reversing the Buchanan County circuit court.

The case was argued for the appellant by Scott Sexton from Gentry Locke, with Monica Monday and some lawyers from the Street Law Firm on brief. Well done.

On the Tennessee side

The Kingsport paper has this disturbing story about a good lawyer who made one or more bad mistakes.

It begins:

"A former Johnson City attorney who pleaded guilty to attempted forgery for signing a client’s name to a probation hearing waiver ended up losing his law license, his practice, his home and cars."

Judge Weckstein a candidate for Virginia Supreme Court

The Roanoke Times has this article that says Judge Clifford Weckstein is a candidate for the vacant position on the Virginia Supreme Court.

The article cites Steve Emmert who bemoans the circumstances that might reduce the field of candidates, but if Judge Weckstein is in the running, that's evidence that there may be quality if not quantity.

The same circumstances cited by Steve might prevent anyone from being selected as the juvenile and domestic relations district judge to succeed Judge Farmer in the 29th district - rare is the lawyer willing to chuck in his or her practice for what may be a very temporary judgeship.

No kidding

I just saw this picture that my dad posted somewhere.

Some people are (still) surprised to learn that the proprietor of Appalachian Resources, also the Rose Hill blogger, is my sister.

Last week's case

Here are the stories from the newspapers:

Daniel Gilbert, Bristol Herald-Courier -

Buchanan County Seeks To Recover Money It Says It Lost Due To Bribery Scandal

Federal Jury Is Deciding Liability In Buchanan County, Va., Bribery Case

Contractors To Pay $500,000 To Buchanan County In ‘Coon Dog’ Case

Laurence Hammack, Roanoke Times -

Big Coon Dog lawsuit trees little cash

The big case

Well, the jury verdict was $500,000, and not on the RICO counts. That's less than I had hoped, but better than nothing.

It was pretty exciting, I'll write more about it one of these days.

Head games

On Friday night, opposing counsel sent me a note that said quit working so hard.

I laughed and told some people about this note, and one of them asked me about that other lawyer, and I said he's a bulldog.

And, the reply was, then he's in trouble, because he's a bulldog but this is a coondog case.

That might be my swing thought for the week, or maybe this.

Ex-judge Shull speaks out

Daniel Gilbert had this lengthy article, with Mickey Shull's thoughts on what happened to him, that he lost his judgeship.

There are some parts of the article I don't like, but it is definitely worth reading, to ponder the many ironies.

Previously, I posted my thoughts here.

On T. Keister Greer

The Roanoke paper reports here on the interesting life and times of the Rocky Mount lawyer, who wrote about the Franklin County moonshine case, as described here, tried in Harrisonburg before Judge John Paul.

Why quit before November?

Senator Clinton cites the example of the assassination of Robert Kennedy as a reason why she should not stop her campaign.

Following this same logic, perhaps after the convention, she will continue to campaign, citing the possibility that Obama has not disclosed prior hospitalization for mental illness, as in the case of the vice-presidential nominee in 1972.

Back out of prison

Yesterday at the Ashland, KY, prison camp, we deposed Ray Blankenship, who is the former chairman of the board of supervisors from Buchanan County, and we had a court reporter, and videographer, and they were two women from Lexington, and on his way out, the witness/inmate gave them a nod and told them he was particularly glad they came by to see him.

Sprung from the prison, I rolled on down to Paintsville, to draw on the good karma (hey, we're undefeated in Johnson County) and the good company of Roger Massengale, who had many tall tales, then went on to Norton and got the latest BBQ from Elsey Harris. It was a full day.

The 25th reunion year

This is, I am reminded, the 25th year after graduation from high school, and I've heard there will be a reunion.

Those who knew me then might say, as some have, that my life has proceeded according to plans that were made in junior high, more or less. I might say the same thing, more or less, by the bare preponderance of the evidence. There's a handwritten essay in the archives from Mr. Sieber's 8th grade English class, or was it 7th grade, in which I wrote how I was going to become a lawyer.

Next door to Mr. Sieber's room, more or less, was Mr. Feiler's room, where he taught 8th grade civics. In his class I first learned the case of Marbury v. Madison. Indeed, in his classroom, there was an old stash of books, soon to be trashed, called Constitutional Analysis, and I took one home (by extraconstitutional means?) and still have it. That would have been more like 30 years ago. I saw Mr. Feiler at a baseball game in 1988, the summer spent clerking at the Barley Snyder firm, and he said he knew all along that I would become a lawyer.

The last time I was in contact with any of my old teachers (other than Ed Stout) was Coach Borden, who taught 9th grade English. "You people don't know how to edit," he declared in those days, "you look at the page and think, 'These are my words, I love them.'" When I saw that he was retiring from coaching basketball, I e-mailed him and told him that I have recalled his admonition many times since, since writing is mainly what I do, and good advice on writing never grows old. He wrote back that he could well recall that I was never at a loss for words.

I saw a piece on the Golf Channel the other day where the question before the panel was would you rather play a pro-am with Tiger Woods or with your mom, and one guy answered his mom, since she had been dead for some years and his dad in particular would like to see her. If I could play a pro-am with one of my high school teachers, it would be the old grey-bearded English teacher with whom I conspired for a couple of years, and who died before his daughters married, two sisters who were both cheerleaders and who both were cursed with the same unfortunate nose and who married on the same day - and I would skip the golf and send him on to see them.

I guess the teachers, particularly those no longer of this earth, don't come to the reunions, and since my tale would hold no mystery to my friends, I won't be at the reunion of the Conestoga Valley class of '83. Besides which, my dad got food poisoning at his 25th reunion.

Stuff I've missed

Justice Agee was confirmed to the Fourth Circuit, as reported here and elsewhere.

Julie Dudley took over as head of the United States Attorney's office, reported here.

All this while I've been driving back and forth to Grundy, and plotting my next trip which is to a federal prison.

Just in time for the election

Here's the decision from the California Supreme Court, in which the divided Court declared that the state's ban on same-sex marriage violates the Equal Protection clause of the state constitution - notwithstanding the statewide referendum on the definition of marriage from only eight years ago.

I am reminded of my post from Election Day, 2004, relating a discussion I had with a guy I know as he was driving to vote, and "[h]e said he would flip the switch for Bush, even though he is mostly a Democrat, and even though he mostly aspires to Christian charity and good will, because there are two things he can't abide, and those are gay marriage and Arab terrorists. (Actually, his phrasing was somewhat more colorful, and it made me recollect the comedian who declares, there are three things I can't tolerate: bigotry, intolerance, and midgets.)"

And this post on the eve of the election in 2006, explaining my "no" vote, and offering this view - "I think most of the claims of both the "yes" and "no" advocates in Virginia were completely bogus, and that many of the people engaged in such advocacy knew full well that were they were saying was bogus but said it anyway to try to get votes for their side."

There's much that's bogus in that California Supreme Court opinion.

More on West Virginia

According to CNN:

Logan County - Clinton 84%, Obama 11%
Mercer County - Clinton 72%, Obama 21%
Mingo County - Clinton 88%, Obama 8%
Raleigh County - Clinton 66%, Obama 26%

All that seems about what you'd guess based on Buchanan and Tazewell counties in Virginia.

She said it

"From potheads to prostitutes to public urinators, they get it all in General District Court.

I highly recommend a few hours there, especially if you can no longer afford movie tickets. Shoot, sometimes there's even nudity."

Kerry Dougherty, in the Norfolk paper.

I have discussed with some people who know that the same is true on the Virginia Court of Appeals, that all manner of human activity passes through there.

What to expect from West Virginia

I haven't been to West Virginia in a while, but I recall that in the Virginia primary back in February, there were these results in some Southwest Virginia counties that border on West Virginia:

Buchanan County - Clinton 89.91%, Obama 9.09%

Tazewell County - Clinton 78.32%, Obama 19.22%

I don't expect Obama to do much better in Logan County or Mingo County, but maybe he will in Raleigh and Mercer counties. That's as far as my crystal ball goes.

My link went bad, but this is still a great story, about the county official who supposedly asked for $3,500 for the 1960 West Virginia primary and got $35,000 from the Kennedy campaign. Another version of the same tale is told here.

Cert granted in Bell case from Virginia

An order came down from the U.S. Supreme Court today granting certiorari on the first issue in what is now called Bell v. Kelly, the post-conviction appeals of the Winchester murder case.

The AP has this report, and SCOTUSBlog has this post with links to the court filings.

The first issue in the petition is this: "Did the Fourth Circuit err when, in conflict with decisions of the Ninth and Tenth Circuits, it applied the deferential standard of 28 U.S.C. § 2254(d), which is reserved for claims 'adjudicated on the merits' in state court, to evaluate a claim predicated on evidence of prejudice the state court refused to consider and that was properly received for the first time in a federal evidentiary hearing?"

So, a plunge into the savage heart of standard of review jurisprudence.

On Jennifer McClellan

I read here and elsewhere that superdelegate Jennifer McClellan switched over to Obama, which is good because I'd think her otherwise incomprehensible support for Ms. Clinton would be an albatross around her neck for the rest of her career.

I mean, if a couple of old timers like Rick Boucher and Tim Kaine figured that one out months ago, you'd think that Ms. McClellan would have been quicker to do the math. How super can a delegate be who wasn't supporting the likely (and history-making) nominee, who carried the Virginia primary (and the precincts of her own district) by a landslide, had the support of the old school Governor and the senior Congressman, raised $300 million, and was never married to Bill Clinton?

Wow, President Bush nominates SW Virginia's own Judge Conrad for Fourth Circuit

It is reported here and elsewhere that President Bush has nominated Judge Glen Conrad of the W.D. Va. to a vacancy on the Fourth Circuit.

The article says in part:

"The White House announced Thursday that Bush had nominated Glen E. Conrad to the Richmond, Va.-based appeals court, which has handled some of the country's biggest terrorism cases.

Conrad has been a judge on the U.S. District Court for the Western District of Virginia since 2003.

If confirmed by the Senate, Conrad would fill the seat of H. Emory Widener Jr., who died last year."

The Roanoke paper has this story, which notes: "With the Conrad nomination, the president has five nominees pending for the five vacant seats on the 4th Circuit."

As noted here, "There are now two Conrad nominations pending for the Fourth Circuit, the other being that of Judge Robert Conrad." As reported here, Judge G. Conrad has been approved by Senator Webb, and so his nomination might proceed apace in the manner of Justice Agee.

One of the Confirm Them commenters notes: "The confirmations of Agee and G. Conrad, though, will likely doom the nominations of R. Conrad and Matthews."

I wonder if this news has Magistrate Judges Urbanski and Sargent maybe snapping their fingers and shuffling their feet.

No kidding

Not too long ago, I was arguing about something and invoked the goose and gander rule, of which I have previously written here. I have heard Magistrate Judge Sargent say that the goose and gander rule "is good law" in the Western District.

The state court judge in ruling on the point declared essentially this: "I won't invoke cliches like Mr. Minor, but I've decided to give him another bite of the apple."

Interesting

Hunton & Williams lawyer Tom Slater is the new president of the VMI board of visitors. I often tell stories of a case I had with him long ago. Every experience I ever had with a Hunton & Williams lawyer has generated a few stories, going back to the first one I ever met, a fellow named Jim Farnham who did an amazing job trying a products liability case about a riding mower, before Judge Williams when I was a law clerk. I can remember it like it was yesterday.

This article deals with the interesting and recurring issue of litigation between a local government and its board of zoning appeals. I guess it means that Staunton is catching up to Fairfax County.

This article says some watchdog group gives Virginia a D for judicial accountability, based on criteria that are not entirely clear. The article says: "The researchers rated each jurisdiction on the degree of public access to complaints against judges; the severity of sanctions; the availability of online information about disciplinary proceedings; the percentage of non-lawyers involved in the sanctioning process; the level of financial disclosure required of judges; whether people are free to speak publicly about complaints they file; and the strictness of limits on reimbursements, compensation and honoraria for privately sponsored trips by judges."

This story says a Christiansburg developer has sued some people over what was said about him on a blog, which I checked out and it led me eventually to this page with an interactive map of the Falling Branch industrial park, and if you scroll on the map down to the big water tank and keep going you can see the little house with the big bushes where Grandma and Grandpa Conrad lived, and their barn, and Uncle Joe's house, all of which seems like a safer topic for a blogger than the lawsuit of the guy suing the bloggers.

This article on one of the lawyer boards says the Virginia Tech shootings may lead the General Assembly to increase the $100,000 cap under the Virginia Tort Claims Act, and links to this Washington Post story. Of course, at common law, the de facto cap was $0, I suspect, as it still is today in some respects and for some defendants, such as counties.

The Daily Press had this interesting report about the status of desegregation orders that required school busing in Newport News, still in place after 37 years.

The online ABA Journal has picked up on the locally-notorious federal court disciplinary case against a Knoxville lawyer, calling him the Lawyer Who Wouldn’t Stop Talking.

New magistrate judge to serve in Southwest Virginia

This order says that in recognition of the caseload coming out of the Cumberland Gap park, a magistrate judge shall be empowered to handle cases from Tennessee, Kentucky, and Virginia - and it will be any full-time magistrate judge from the Eastern District of Kentucky.

Grad student's suit fails to pass

In Brown v. Rector and Visitors of the University of Virginia, Judge Moon granted the motion to dismiss from the defendants in a case filed by an ex-graduate student.

And, it is a case study of the hurdles to stating a claim against a state school: (1) there is some talk about Bell Atlantic v. Twombly, which provides cover to district courts wanting to move on lame complaints at the pleadings stage; (2) the Eleventh Amendment bars relief against the University as an agency of the Commonwealth - (query, why doesn't the same rule apply to local school boards?); (3) qualified immunity protects individuals in all but the clearest cases of constitutional violations; (4) on a Due Process claim, what procedural process is due is not much, at least not for academic dismissals, or even disciplinary dismissals; and (5) you can't actually rely on representations in a student handbook that are qualified by the customary disclaimer.

He said it

"When Justice Agee is confirmed as a federal circuit judge, the Fourth Circuit will have fewer vacancies than at the end of the Clinton administration."

Sen. Patrick Leahy, on the occasion of last week's Judiciary Committee hearing for Justice Agee's nomination to the Fourth Circuit. His comments are taken to mean that Justice Agee will be confirmed this month, as suggested here and here, even though he will be cutting line ahead of others less fortunate.

With Justice Agee's apparent success in Washington, behind him begins the speculation over his successor, such as this piece by Jeff Shapiro, which says that maybe there can be a big political deal involving Agee's seat on the Supreme Court and the vacancy on the State Corporation Commission - the one that would have been filled already, says Shapiro, but for internecine bickering among the Republicans.

And, this committee may have to meet, which is excellent, because I enjoy listening to lawyers like Glenn Pulley and Taz Ellett, every chance I get.

Max and Gina

Max Lawson and his girlfriend Gina, who both have worked here off and on, have this website about their wedding, coming up next month.

They mailed the invitations with postage bearing their photo and web address, made here.

Chief Judge Jones rejects liberty interest claim

The Constitution protects against deprivations of life, liberty, and property without due process of law.

Somewhere along the way came the notion that the concept of liberty includes freedom from being bad-mouthed by the government, but there's more to it than that, as evidenced by the ruling in April by Judge Jones in Etter v. Spencer.

The only such claim that I can recall getting anywhere was in the case of the NCAA compliance officer thrown under the bus by Marshall University, and even in that case there was a dissent from Judge Widener.

Voice of Cavaliers quits

This piece by Doug Doughty says that Mac McDonald has resigned.

Maybe they will rehire Warren Swain away from the Ohio U. Bobcats.

Oops, someone on the boards has already suggested this.

On Conrad and Matthews

It says here that Senators Spector and McConnell are trying to shame Chairman Leahy into scheduling hearings on Fourth Circuit nominees Conrad and Matthews.

Davis gets past committee

Mark S. Davis has been approved by the Senate Judiciary Committee for confirmation to a seat on the E.D. Va., according to this report, which says the other pending E.D. Va. nomination is still waiting action.

Rehearing in the spam case

It is reported in this Media General story that the Virginia Supreme Court has agreed to a rehearing in the case of the man convicted under the spam statute, the subject of a 4-3 decision by the Court.

Christiansburg lawyer indicted for forgery

The Roanoke paper has this article on the forgery indictment against attorney Gerard Raymond Marks.

The article notes:

"In September, Circuit Court Judge Joey Showalter issued an order indefinitely barring Marks from practicing in the 27th Circuit, which includes the counties of Bland, Carroll, Floyd, Giles, Grayson, Montgomery, Pulaski and Wythe, and the city of Radford.

The order gave no reason for Showalter's decision.

Three months later, the Virginia State Bar suspended Marks' license to practice law for failure to comply with a subpoena duces tecum -- an official request ordering a witness to appear and to bring specified documents or records."

He said it

"I expect the Judiciary Committee and the Senate will proceed promptly to consider and confirm Justice Agee’s nomination with the support of Senator Warner and Senator Webb."

Senator Leahy, April 3, 2008.

Justice Agee to the front of the line

Justice Agee's nomination now has a hearing before the Senate Judiciary Committee set for May 1, which has some Republicans complaining about the lack of hearings for those who were nominated before him.

Ah, the evil zombies

"The appointment of the receiver removed the wrongdoer from the scene. The corporations were no more Douglas's evil zombies. Freed from his spell they became entitled to the return of the moneys-for the benefit not of Douglas but of innocent investors-that Douglas had made the corporations divert to unauthorized purposes."

Posner, J., in Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995).

Now, how can I work an "evil zombies" reference into the brief I've been working on? It might not be a problem.

On Judge Farmer's position

Daniel Gilbert has this article about the legislature failure to fill the juvenile judgeship in the 29th district.

As regards the prospect that the circuit court judges will reappoint Judge Farmer, Senator Puckett is quoted as saying, somewhat ominously, "The judges in the 29th Circuit could have an opportunity to reappoint him if they think I’ve made a bad judgment."

Someone told me the other day that Judge Farmer cannot be reappointed by the judges, per some provision in the Code, but I can't find any such limitation. See, e.g., Va. Code 16.1-69.9:2.

Three federal appeals court judges before Memorial Day?

This post and this post, among others, say there is a deal in the Senate to confirm three judges to the United States Courts of Appeals before Memorial Day, later this month.

The unknown - which ones.

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.