The Bristol paper reported here that the Wise County Board of Supervisors decided to ask the lawyers to file a petition for rehearing in the landfill fee case.
I'm hoping that the Virginia Supreme Court grants rehearing in the landfill fee case, because their opinion leaves many, many unanswered questions - like what is the County supposed to do now? How can the ordinance be made constitutional? How should the County decide which fee-payers, if any, are entitled to refunds, and in what amount? What are fee-payers supposed to do under local and state law, are there procedures to be followed, remedies to be exhausted? Instead of making refunds, can the County charge more to the fee-payers who pay less, to even out the disparities in the rate to avoid the equal protection problem? Does this ruling apply only prospectively? There are some indications from the Virginia Supreme Court, like in the federal retiree taxation case, that the Supreme Court's declarations that a taxing scheme is unconstitutional apply only prospectively. See Harper v. Virginia Dept. of Taxation, 241 Va. 232, 241-42, 401 S.E.2d 868, 873-74 (1991). Even if that's true, and the same rule applies in "fee" cases, what does it mean? No refunds? A state law rule that says no refunds sounds like a sure-fire denial of due process to me - somehow, some way, the County needs to smooth out the disparities that gave rise to the equal protection, and partial refunds to the discriminatees could be one answer. Compare Fulton Corp. v. Faulkner 516 U.S. 325, 346-47 (1996) ("a State might refund the additional taxes imposed upon the victims of its discrimination or, to the extent consistent with other constitutional provisions (notably due process), retroactively impose equal burdens on the tax's former beneficiaries. A State may also combine these two approaches.").
I know that the Virginia Supreme Court is not in the business of giving advisory opinions, and maybe the Court will do nothing - which means that the County will have to gamble on what the Court's opinion means, until the next appeal.
Friday, September 26, 2003
Hearing begins on appeal of use permit for mining in agricultural zone
Landowners in Orange County are challenging the award of a special use permit to General Shale for the operation of a shale mine in an agricultural zone, as reported in this Daily Progress article, which says that the circuit court may grant the defendants' motion to strike the evidence.
Pass/fail grading for first two years at U.Va. med school
The Cavalier Daily reports here that the U.Va. medical school is moving to pass/fail grading for the first two years of medical school, beginning with the Class of 2007.
Tax reform dead?
Via Virginia Lawyers Weekly, the Richmond Times-Dispatch reports here that the prospects for sweeping tax reform in Virginia are already dead, including the prospect of a tax on services on including legal services.
Amazon negotiating endorsement of Internet sales tax
According to this story in the Washington Post, the world's largest online vendor, Amazon.com, is working on a deal for a Internet sales tax proposal that will have its approval. The srticle specualtes that by co-opting Amazon, the proponents of taxing Internet sales will steal a march on their many opponents.
Ban the charitable calls, too
To the federal court opinion from Colorado, holding that the do-not-call list of the FTC was unconstitutional because it does not bar calls soliciting charitable contributions, will Congress make the natural response and say, ok, we'll ban the charitable calls, too? Yet, I wondered about the part of the opinion that suggests there is a hierarchy of protected speech - the district court said the following:
"Despite the value of commercial speech, however, it is afforded lesser protection under the First Amendment than other types of speech, such as speech soliciting donations for political or charitable causes. Central Hudson, 447 U.S. at 562, 100 S. Ct. at 2349; Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632,100 S. Ct. 826, 834 (1980). Charitable solicitation of funds does more than inform private economic decisions because it involves the dissemination of views and the advocacy of political and social causes. Village of Schaumburg, 444 U.S. at 632, 100 S. Ct. at 834. It is, therefore, protected more highly than commercial speech. Commercial speech also receives lesser protection because, to require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the First Amendment's guarantee with respect to the latter kind of speech. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S. Ct. 2371, 2375 (1995)."
So, if "charitable" speech gets more protection under the First Amendment than does commercial speech, then why is that not a sufficient justification for the do-not-call list to apply to commercial speech but not to charitable speech? On the other hand, it was my understanding that there is no such hierarchy of different kinds of speech that are more protected than others.
"Despite the value of commercial speech, however, it is afforded lesser protection under the First Amendment than other types of speech, such as speech soliciting donations for political or charitable causes. Central Hudson, 447 U.S. at 562, 100 S. Ct. at 2349; Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632,100 S. Ct. 826, 834 (1980). Charitable solicitation of funds does more than inform private economic decisions because it involves the dissemination of views and the advocacy of political and social causes. Village of Schaumburg, 444 U.S. at 632, 100 S. Ct. at 834. It is, therefore, protected more highly than commercial speech. Commercial speech also receives lesser protection because, to require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the First Amendment's guarantee with respect to the latter kind of speech. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623, 115 S. Ct. 2371, 2375 (1995)."
So, if "charitable" speech gets more protection under the First Amendment than does commercial speech, then why is that not a sufficient justification for the do-not-call list to apply to commercial speech but not to charitable speech? On the other hand, it was my understanding that there is no such hierarchy of different kinds of speech that are more protected than others.
Augusta County Republican proposes cigarette tax
The Roanoke Times has this article on the latest discussions of the tax reformers, including a proposal from Sen. Emmett Hanger to impose a new tax on cigarettes.
Thursday, September 25, 2003
How Appealing rules
Via Southern Appeal, this post suggests that appeals court litigants every where will want to get their views posted on How Appealing, because the appeals court judges and law clerks all read it.
Virginia PAC for parents reaches Southwest Virginia
This article from the Connection newspapers tells of a political action committee for parents, with membership that reaches Southwest Virginia.
Southeast Virginia contractors swamped in wake of Isabel
People are literally throwing themselves at tree-removing contractors, according to this Daily Press report.
Motion to suppress granted where probable cause founded on illegal hotel room search
In U.S. v. Pope, Judge Jones of the W.D. Va. granted the defendant's motion to suppress evidence from the search of his vehicle by police, who were acting on knowledge they obtained from a search of the defendant's hotel room for which they had no consent and no warrant. The defendant was represented by David Scyphers of Abingdon.
Evidence of comp benefits not barred by collateral source rule in ADA employment case
In Riffey v. K-VA-T Food Stores, Inc., Judge Jones held that the employer-defendant was not barred from introducing evidence of the workers' compensation benefits the plaintiff received, distinguishing cases involving unemployment compensation and relying on a NLRA case from the Fourth Circuit.
Campaign Disclosure project gives Tennessee an F, Virginia a D+
This article in the Kingsport Times (registration required) says the campaign finance disclosure requirements for Virgina and Tennessee are rated as poor in a recent study.
I don't know, the information about campaign contributions in Virginia accessible by the Virginia Public Access project seems detailed and interesting to me.
I don't know, the information about campaign contributions in Virginia accessible by the Virginia Public Access project seems detailed and interesting to me.
More on the West Virginia coalbed methane case
The AP has this story on the coalbed methane ownership rights case argued this week before the Supreme Court of West Virginia.
Wise County court recognizes charitable immunity of Little League
According to this article in the Coalfield Progress, Judge Robert Stump for the Circuit Court of Wise County sustained the charitable immunity defense of the Coeburn Little League in a wrongful death case arising out of the death of a young man who was killed by a steel cable on the property of the baseball field while he was riding his ATV.
Suing legislators over judicial selection
Via Virginia Lawyers Weekly, the Richmond Times-Dispatch has this story about a lawsuit brought by a Richmond lawyer against a group of legislators for asking improper questions of candidates for judicial positions about actual cases from the past, present, or future.
The article includes this description of the petitioner's views:
"Baugh said he attended sessions at which judges who were up for reappointment were questioned by members of the House committee about decisions they had made.
Such questioning suggested that reappointment would be influenced by whether the judges' interpretation of the law matched that of the legislators, Baugh said in the suit.
Any effort to influence judicial discretion violates the state constitution and the right of the people "to be free from oppressive government, which arises when one branch of the government seeks to or actually dictates how that discretion should be applied," Baugh said.
Baugh alluded to the questioning of Judge Rosemarie Annunziata when she was up for reappointment this year to a second eight-year term on the Virginia Court of Appeals.
Several legislators challenged the reasoning in her dissent in favor of a lesbian mother in a child-custody case, but she ultimately was reappointed.
The questioning was improper because it was aimed at the exercise of Annunziata's judicial discretion, Baugh said. The only proper areas of inquiry are a judicial candidate's "good behavior, personal character and fitness for office," he wrote."
The article includes this description of the petitioner's views:
"Baugh said he attended sessions at which judges who were up for reappointment were questioned by members of the House committee about decisions they had made.
Such questioning suggested that reappointment would be influenced by whether the judges' interpretation of the law matched that of the legislators, Baugh said in the suit.
Any effort to influence judicial discretion violates the state constitution and the right of the people "to be free from oppressive government, which arises when one branch of the government seeks to or actually dictates how that discretion should be applied," Baugh said.
Baugh alluded to the questioning of Judge Rosemarie Annunziata when she was up for reappointment this year to a second eight-year term on the Virginia Court of Appeals.
Several legislators challenged the reasoning in her dissent in favor of a lesbian mother in a child-custody case, but she ultimately was reappointed.
The questioning was improper because it was aimed at the exercise of Annunziata's judicial discretion, Baugh said. The only proper areas of inquiry are a judicial candidate's "good behavior, personal character and fitness for office," he wrote."
More on electronic filing in federal court
From this press release about the recent meeting of the Judicial Conference of the United States:
"In September 2001, the Conference adopted a policy for remote public electronic access to civil, bankruptcy, and appellate case files. But at that time it decided not to allow for similar access to criminal case files. In March 2002, the Conference established a pilot program for 10 district courts and one appellate court to allow Internet access to criminal case files.
The Federal Judicial Center has studied the experience of the pilot courts and found no evidence of harm to any individual and also found that a majority of those interviewed in the pilot courts —judges, court staff, and counsel — extolled the advantages of electronic access. The Conference Committees on Court Administration and Case Management, Criminal Law, and Defender Services will work together in drafting appropriate implementation guidance for the courts. The pilot program will continue access during the implementation period.
Once implemented, the policy requires that certain personal identifier information should be partially redacted by the filer of the document, whether it is filed electronically or in paper form. For example, Social Security and financial account numbers should be reported as the last four digits only and the names of minor children should be listed only by their initials. This is the policy currently in effect for civil cases.
Remote access to federal court files has been made possible by the Case Management/Electronic Case Files (CM/ECF) system, which is in the process of being implemented throughout the federal courts. As of September 1, 2003, 25 district courts and 60 bankruptcy courts are using the system. More than 10 million cases are on the CM/ECF system and more than 40,000 attorneys and others have filed documents over the Internet. Electronic access to these documents is available through the Public Access to Court Electronics Records (PACER) program."
"In September 2001, the Conference adopted a policy for remote public electronic access to civil, bankruptcy, and appellate case files. But at that time it decided not to allow for similar access to criminal case files. In March 2002, the Conference established a pilot program for 10 district courts and one appellate court to allow Internet access to criminal case files.
The Federal Judicial Center has studied the experience of the pilot courts and found no evidence of harm to any individual and also found that a majority of those interviewed in the pilot courts —judges, court staff, and counsel — extolled the advantages of electronic access. The Conference Committees on Court Administration and Case Management, Criminal Law, and Defender Services will work together in drafting appropriate implementation guidance for the courts. The pilot program will continue access during the implementation period.
Once implemented, the policy requires that certain personal identifier information should be partially redacted by the filer of the document, whether it is filed electronically or in paper form. For example, Social Security and financial account numbers should be reported as the last four digits only and the names of minor children should be listed only by their initials. This is the policy currently in effect for civil cases.
Remote access to federal court files has been made possible by the Case Management/Electronic Case Files (CM/ECF) system, which is in the process of being implemented throughout the federal courts. As of September 1, 2003, 25 district courts and 60 bankruptcy courts are using the system. More than 10 million cases are on the CM/ECF system and more than 40,000 attorneys and others have filed documents over the Internet. Electronic access to these documents is available through the Public Access to Court Electronics Records (PACER) program."
Discussion on ideology and judicial nominations
I read this transcript of a discussion sponsored by the Federal Society about the role of ideology in judicial selection.
Part of what makes it amusing is that everyone has said something stupid at one time or another - liberals and conservatives have both guessed wrong time after time about judges, so far wrong to make it look like they either have no idea and/or don't care whether what they are saying is true.
Part of what makes it amusing is that everyone has said something stupid at one time or another - liberals and conservatives have both guessed wrong time after time about judges, so far wrong to make it look like they either have no idea and/or don't care whether what they are saying is true.
Wednesday, September 24, 2003
More on the really big tech conference in Roanoke
The Washington Post has this article on the efforts of Governor Warner to sell the possibilities of tech commerce in the Commonwealth at the fancy meeting in Roanoke that features former British Prime Minister John Major and Retired General Norman Schwartzkopf as speakers.
Virginia Supreme Court calendar for 2004
This revised schedule for the Virginia Supreme Court shows when the writ panels will be held next year - that's a new bit of information that I don't think was published on the website in the past.
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