On Justice Goodwyn

I was out and about when the word came down that Governor Kaine has selected Circuit Court Judge S. Bernard Goodwyn to succeed Justice Lacy on the Virginia Supreme Court. Here is the press release from the Governor's office. The Attorney General released this statement supporting the confirmation of Goodwyn in the upcoming General Assembly session.

Here is a reprint of the article about him in the Norfolk paper when he was appointed to the District Court in 1995. Here is a similar article from when he was appointed to the Circuit Court in 1997. Here is yesterday's article by Warren Fiske, which notes: "Goodwyn was an honor student at Southampton County High School and quarterbacked the football team to a 1979 state championship, a 56-6 drubbing of Gate City High whose roster included Jerry Kilgore, the Republican nominee for governor in 2005. Goodwyn threw for two touchdowns and ran for one in the game." Before becoming a judge, Goodwyn was with the Willcox & Savage firm in Norfolk - the same firm as U.S. District Court Judge Walter Kelley.

Here is the article from the Washington Post, and here is a story from the Richmond paper.

Which birthday was it on Saturday?

Think Richard Petty.

(Photo from this flickr source).

On getting barred from the 27th Circuit

The Roanoke Times reports here that Circuit Judge Showalter has "taken the unusual step of barring a Christiansburg lawyer from practicing law in his judicial circuit.."

District Court decision affirmed in Virginia open primary case

Today, in Miller v. Brown, the Fourth Circuit in an opinion by Senior Judge Wilkins, joined by Judge Duncan, affirmed in its entirety the prior decision by District Judge Henry Hudson in the open primary case, rejecting the issues raised by the plaintiffs and the election officials.

Didn't hear the last 2:00

It appears I wasn't the only one with this experience, as I received an e-mail that says:

September 25, 2007

Dear V-Pass Customer,

We apologize the live online audio broadcast of Georgia Tech at Virginia football game on Saturday, Sept. 22 dropped silent near the end of the game. We have resolved the technical issue that caused this to happen and we are confident a similar occurrence will not happen again.

----

Pay $40, and it conks out right at the end of the game.

Your division leader

ACC COASTAL DIVISION

School, Conference, Overall

Virginia, 3-0, 3-1

Miami, 0-1, 3-1

Virginia Tech, 0-0, 3-1

Duke, 0-1, 1-3

North Carolina, 0-1, 1-3

Georgia Tech, 0-2, 2-2

Weekend project

Since I didn't go to the Georgia Tech game, didn't work, didn't play golf, and didn't mow the grass, yesterday and today I wrote my first-ever Wikipedia entry, on Judge Robert W. Hughes.

Best thing I read today

Today's Bristol paper had this Sharon Randall column, about taking her brother, a life-long Clemson fan who is blind, to his first in-person Tigers football game at Death Valley.

It says they had a big time.

The last time I linked to Sharon Randall, her son took her to the Final Four.

On the late Judge Cridlin

Besides Judge Widener on Wednesday, retired Judge Joseph Cridlin of Lee County died on Friday.

The Bristol paper published this obituary:

"JONESVILLE, Va. – Judge Joseph N. Cridlin, 94, of Jonesville, Va., was born April 13, 1913 and passed away Sept. 21, 2007, at Lee Regional Medical Center in Pennington Gap, Va.
His parents, Judge George Patton Cridlin and Sallie Campbell Smith Cridlin, preceded him in death.
Judge Cridlin was a lifelong resident of Lee County and a graduate of William & Mary College and the Marshall Wythe School of Law. He began his law practice in Jonesville in 1935 and was appointed as a Virginia Circuit Court judge in 1960, retiring in 1975. He continued to do substitute judicial work for the next 20 years and was a member of the Virginia State Bar for 72 years. At the time of his death, Judge Cridlin was president and chairman of the board of Powell Valley National Bank in Jonesville.
Judge Cridlin served in the U.S. Army for four years during World War II with tours of duty in Australia, New Guinea and the Philippines. He was commissioned as a 1st lieutenant before being discharged in 1946.
Judge Cridlin was a lifelong member of the Jonesville First United Methodist Church, where he taught Sunday school for over 40 years. He was a charter member and first president of the Jonesville Lions Club in 1940. He was also a charter member of the Cedar Hill Country Club, a Mason and a member of Preston Masonic Lodge No. 47 AF&AM since 1940.
In addition to his parents, Judge Cridlin was preceded in death by his wife, Fay Fuller Cridlin, brother, Clyde Y. Cridlin, and sister, Roberta Cridlin Vergara.
He is survived by son, George Fuller Cridlin and wife Karen, Jonesville, Va.; daughter, Josephine Cridlin Roddenberry and husband Ken, Jonesville, Va.; grandchildren, Stephanie Rowlett Dourado and husband Eli, Arlington, Va., Joseph Patton Cridlin and wife Shelley, St Petersburg, Fla., and Harrison Fuller Cridlin, Jonesville, Va."

Not too long ago I had this post about Judge Cridlin.

Terminological inexactitude and qualified immunity

For reasons that are not entirely clear to me, Judge Shedd in the case of Henry v. Purnell decided to hold forth on a number of the oddities of the law of qualified immunity, in the Fourth Circuit.

The Supreme Court requires the two-parts of the qualified immunity to be addressed in a particular sequence, for reasons that are not entirely satisfactory. The initial inquiry is whether the plaintiff has stated or proven sufficient facts to show a constitutional violation - in other words, does the plaintiff have a case on the merits? If the trial court decides this first inquiry against the plaintiff, is it a decision based on qualified immunity, or not? And, does it matter?

Judge Shedd notes:

"When resolving cases on the first Saucier question, courts sometimes state that the absence of a constitutional violation entitles the defendant to qualified immunity. At least one circuit court has specifically rejected this approach, noting that a defendant in that instance prevails not because of qualified immunity but, instead, because the plaintiff "did not prove an essential element of the § 1983 claim." Ambrose v. Young, 474 F.3d 1070, 1077 n.3 (8th Cir. 2007). In several recent opinions, the Supreme Court appears to have segregated the initial Saucier inquiry of whether a constitutional violation occurred from the second inquiry of whether the defendant is entitled to qualified immunity. See, e.g., Morse v. Frederick, ___ U.S. ___, 127 S. Ct. 2618, 2624 & n.1 (2007) (expressly declining to decide the case on qualified immunity grounds based on the conclusion that no constitutional violation occurred); Groh v. Ramirez, 540 U.S. 551, 563 (2004) ("Having concluded that a constitutional violation occurred, we turn to the question whether petitioner is entitled to qualified immunity despite that violation."); Brosseau v. Haugen, 543 U.S. 194, 198 (2004) (expressing "no view as to the correctness of the Court of Appeals’ decision on the constitutional question" because, in any event, "the Court of Appeals was wrong on the issue of qualified immunity"); see also id. at 601 (Breyer, J., concurring) (noting that Saucier "requires lower courts to decide (1) the constitutional question prior to deciding (2) the qualified immunity question")."

Of course, the characterization makes some practical difference when the defendant's motion for summary judgment is denied, because an ordinary denial of summary judgment on the merits is not immediately appealable, but denial of a motion for summary judgment based on qualified immunity is immediately appealable.

The second point is how does the burden of proof apply to a motion for summary judgment based on qualified immunity. This opinion, for the first time that I can recall, undertakes a thorough survey of the language from the Fourth Circuit precedents on this point, which are contradictory and inconsistent with the explanations from some other circuits. Qualified immunity is an affirmative defense, that the defendant must raise, but the burden of proving the claim on the merits is always on the plaintiff.

Judge Shedd explained:

"The plaintiff bears the burden of proof on the first question — i.e., whether a constitutional violation occurred."

He goes on to say:

"The defendant bears the burden of proof on the second question — i.e., entitlement to qualified immunity."

In making this statement, the judge noted that other circuits and some of the Fourth Circuits take the opposite view. I'm not sure that even makes sense to say the defendant has the burden of proof on what is essentially a legal question - was the constitutional right violated by the defendant clearly established?

The Green and the Gold

A while back I read this item which says, among other things, that the faculty of the College of William & Mary have given their green and gold to federal candidates for '08 (as of July 30, 2007) at a ratio of 99% to Democrats and 1% to Republicans.

The Flat Hat says a Facebook survey shows that liberals outnumber conservatives among the William & Mary students on Facebook, 2.84 to 1.

Some links

The Judicial Conference says - transcripts will soon be available online, through PACER at eight cents per page.

Once again, the NY Times says, it will quit charging for much of its content.

Here in this Megan McArdle post is debated the question, "How conservative is the Supreme Court? How deep is the ocean? How high is the sky?"

On the late Judge Widener of the Fourth Circuit

The Bristol paper reports here that Senior Judge H. Emory Widener, Jr., of the U.S. Court of Appeals for the Fourth Circuit, died at his home here in Abingdon yesterday, at the age of 83.

My wife saw the article and asked me if this was the fellow with the hat who ate lunch at the Empire. Indeed, that's the one, the same man my dad knew from the Math Olympics, and who is the subject of posts here, here, and here.

Today's links

The Roanoke paper reports here on a Southwest Virginia farmer who filed suit over the use of his picture on a card that asks, would you rather be spanked or goosed? The case was filed in Roanoke County Circuit Court.

Here is a profile of a stout U.Va. man, who died at age 24 from muscular dystrophy.

Here from Time magazine and here from USAToday are items on the new Jeffrey Toobin book about the U.S. Supreme Court.

The field goal call that got reversed

Nobody has anything good to say about this bit of refereeing.

On Roanoke's Judge Coulter

The Roanoke paper had this story on the life and times of the late Circuit Court Judge Jack Coulter.

The article says in part:

"Coulter was twice nominated for seats on the Virginia Supreme Court, the second coming down to the flip of a coin. In 1987, Roanoke-area legislators flipped a coin to break a deadlock over whether to back Coulter or Chief Appeals Court Judge Lawrence Koontz for the state Supreme Court.

That seat eventually went to the Winchester Circuit Court Judge Henry Whiting. Koontz succeeded Whiting in 1995."

From the folks who brought us Ward Churchill

The Tallahassee paper reports:

"A 'Southern-type thing'

Billy Smith has been providing Florida State head coaches with on-field security since 1964. The sight of the retired Florida Highway patrolman on the sideline in uniform with a gun in his holster is just a part of Florida State football.

That practice, however, isn't to the liking of the University of Colorado, which according to Smith told him he couldn't be in uniform and could not have a gun. Smith said that was before FSU President T.K. Wetherell stepped in, talked to his Colorado counterpart and reached an agreement for Smith to be there on Saturday night.

“They allow their highway patrol, sheriff's office, police department and campus police but not the visiting trooper,” Smith said. “One of their people told me, 'Oh, you do the Southern-type thing.' ”

It's the first time Smith encountered the problem."

On last week's Virginia Supreme Court rulings

Friday was decision day in the Virginia Supreme Court, the first of the fall. Here is the synopsis page. The VLW Blog has several posts on the decisions.

Here from the Norfolk paper, here from The Hook, here from the Richmond paper, and here from the Roanoke paper are stories about the decision in the Highland County wind farm case. The opinion is Miller v. Highland County, by Justice Keenan. It decides procedural issues related to the zoning.

Here from the Washington Post and here from the AP are stories on the tree injunction case, modernizing the tree law of the Commonwealth. The opinion is Fancher v. Fagella, by Senior Justice Russell. In this opinion, the Court replaced one judge-made rule with another, with unknown effects on property rights throughout the Commonwealth, in the interests of modernity and urbanization.

What's interesting is the Court almost adopted the Blackwelder test for injunctive relief, see Blackwelder Furn. Co. v. Seilig Mfg. Co., Inc., 550 F.2d 189 (4th Cir. 1977). The Court says, by way of advisory opinion: "The decision whether to grant an injunction always rests in the sound discretion of the chancellor, and depends on the relative benefit an injunction would confer upon the plaintiff in contrast to the injury it would impose on the defendant. Any burden imposed on the public should also be weighed. Akers v. Mathieson Alkali Works, 151 Va. 1, 8-9, 144 S.E. 492, 494 (1928)." Maybe Blackwelder adopts the Akers v. Mathieson Alkali test.

Here is a story from the Norfolk paper on the FOIA case decided against the Norfolk Airport Authority. The opinion is Fenter v. Norfolk Airport Authority, by Senior Justice Stephenson.

Here from the Leesburg paper is an article on the Supreme Court's decision reversing an order imposing a writ of mandamus against a town official, as part of a long-running dispute between Leesburg and a developer. The opinion is Umstattd v. Centex Homes, G.P., by Senior Justice Russell.

Here the Newport News paper reports on the Supreme Court's decision upholding a multi-million dollar verdict in an asbestos case. The opinion is John Crane, Inc. v. Jones, Admin'x.

Nominee No. 4

Via ConfirmThem, the Washington Post reports here that Rod Rosenstein, U.S. Attorney for the District of Maryland, will be nominated to the Fourth Circuit to the seat formerly held by the late Judge Murnaghan. There have been stories like this before about Rosenstein's prospects.

If it's true, then there would be four pending nominations for the five vacancies on the Fourth Circuit.

Give us one more - from Virginia.

824 Supreme Court orders

It says here the Virginia Supreme Court entered 824 orders on motions other than for extension of time in 2005-2006.